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International Law 



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International Law 




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"International Law Situations, with Solutions 
and Notes, 1938," has been prepared by Payson 
Sibley Wild, Jr., Ph. D., professor of interna- 
tional law, Harvard University, and associate for 
international law at the Naval War College. It 
covers problems which have been the subject of dis- 
cussion by members of the senior and junior 
classes of 1939. The method followed has befen to 
propound situations for consideration by members 
of the classes and, after critical discussion, to 
organize the material for publication. 

While the conclusions reached as a result of the 
discussions are in no way official, the notes afford 
a convenient survey of material relating to the sub- 
ject presented, and they should be of value for pur- 
poses of reference. 

Criticism concerning the contents of this volume 
and suggestions regarding situations to be given 
consideration in subsequent volumes will be wel- 
comed by the Naval War College. 

C. P. Snyder, 
Rear Admiral, United States Navy, 

President, Naval War College. 

April 6, 1939. 



Annually, since 1900, the Naval War College has 
published "International Law Situations, with 
Solutions and Notes.' ' The volumes for the years 
1901 to 1937, inclusive, were prepared by George 
Grafton Wilson, Ph.D., LL.D., professor emeritus 
of international law, Harvard University. 

At the close of the College session, 1937-1938, 
Professor Wilson, at his own request, relinquished 
his duties as Associate for International Law, and 
was succeeded by Payson Sibley Wild, Jr., Ph.D., 
professor of international law, Harvard Univer- 

Upon conrpletion of Professor Wilson's address 
at the War College on April 4, 1939, the President 
of the College took occasion to recognize the val- 
uable services of Professor Wilson, past and pres- 
ent, and to express to him the appreciation and 
esteem of the President and Officers of the Naval 
War College and of the Naval Service at large. 

The Secretary of the Navy addressed a letter to 
Professor Wilson, expressing, on behalf of the 
many officers of the U. S. Navy who had enjoyed 
his association, their thanks for his valuable serv- 
ices, and extended his personal good wishes for the 



Situation I. Belligerent and neutral rights in regard to 

aircraft t 


(a) 2 

(6) 2 

(c) 2 

(d) w 2 

(6) 2 


Air law in general 2 

Naval War College discussions 3 

Can legal restraints on air warfare be made? 4 

Air warfare and the sanctions of the laws of war 6 

Actual and projected conventions and rules for the air_ 9 

Post-war conventions and proposals 10 

Preliminary Harvard Draft Code 14 

Assumptions in this case 15 

Visit and search by airplanes 15 

Problems of signalling and of landing 18 

Attack on Chinese commercial airplane 20 

Sending in to a prize court 24 

Airplanes and contraband 25 

Should the air law be more rigorous? 26 

Airplanes and blockade 27 

Penalty for breach of blockade 28 

Further comment on blockade 29 

Visit and search and air mail 31 

Contraband and continuous voyage 33 

Aircraft and unneutral service 35 

Period of liability for unneutral service 37 

Resume" 38 


(a) 41 

(6) 41 

(c) 41 

(d) 41 

(e) 41 



Situation II. Force short of war: Blockade and occupation in 

time of peacp 43 


(a) - 44 

(6) 44 

(c) 45 


"Strained relations" 45 

Nature of the Sino- Japanese clash 46 

Report of the Nine Power Brussels Conference 46 

Policy of the United States — General 54 

Self-help and strained relations — Reprisals 56 

Pacific blockade 58 

Pacific blockade in the Sino-Japanese conflict 58 

The international law governing reprisals — Four 

general rules 60 

American attitude toward Japanese conduct of 

hostilities 63 

Bombing cf Nanking 64 

American property in areas of hostility 66 

American property occupied by Japanese 67 

Airplanes and Pacific blockade 69 

Article 723 of U. S. Navy Regulations, 1920 72 

General principle involved 73 

Nonmilitary occupation and extraterritoriality 74 

American atittude toward Japanese occupation of 

China 74 

Rules of "Pacific" occupation 81 

Occupation and extraterritoriality — Precedents 82 

Application to the problem 83 

Resume" 85 


(a) 87 

(6) . 88 

(c) 88 

Situation III. Insurgency and civil strife — Protection of ships 

of third states 89 


(a) 90 

(6) 91 

(c) 91 


The Spanish civil strife — General 91 

Maritime rules during insurgency 92 

Position of third states during insurgency 93 

Insurgency and blockade 94 

Blockade in the Spanish civil strife 95 

Insurgent vessels and piracy 98 


Situation III — Continued. 

Notes — Continued. Page 

Harvard Draft Code and piracy 98 

The Nyon and Geneva arrangements 99 

The submarine rules 105 

Nonintervention and the Spanish civil strife 107 

The United States and Spanish civil strife 110 

Special act of Congress in regard to Spain 111 

Sections of the act of May 1, 1937 111 

Proclamation in regard to arms 112 

Attacks on foreign ships during Spanish civil strife 113 

The Nantucket Chief 113 

The U. S. S. Kane 115 

Attack in British waters 116 

The Wisconsin 117 

The Polos 118 

British policy in regard to attacks 120 

The observation scheme and visit and search 121 

Resistance to illegal visit and search 122 

Illegal attacks by submarine 123 

What constitutes an "attack" 125 

Resume* 126 


(a) 127 

(6) 127 

(c) 127 


I. The case of the U. S. S. Panay 129 

II. Resolution Relating to the scheme of observation of 
the Spanish frontiers by land and sea (adopted 

March 8, 1937) 151 

Situation I 


States X and Y are at war. Other states are 
neutral. All states concerned are parties to the 
conventions relating to the conduct of aircraft as 
ratified by the Pan-American Conferences, and 
respect the generally accepted principles of 
international law. 

(a) It is known that an aircraft, B-17, regis- 
tered in state B, has carried to state X articles of 
the nature of contraband. 

(6) It is known that an aircraft, C-12, regis- 
tered in state C, has flown to a port O in state X 
above the line of vessels, submarines and aircraft, 
maintaining a blockade of port O. 

(c) It is known that an aircraft, D-20, regis- 
tered in state D, has carried in the regular air mail 
from port O to port N, an unblockaded port of 
state X, military messages, funds, and some light 
but essential military materials. 

(d) It is known that an aircraft, E-30, regis- 
tered in state E, has carried essential military ma- 
terials to Porta, a town in state P near the frontier 
of state X, and that some of these materials were 
immediately shipped to state X. 

(e) It is known that an aircraft, G-4.0, regis- 
tered in state G, has under special charter carried 
General Xano of the Army of X from a port in 
state G to the military headquarters of state X. 


These aircraft, severally, later, when above the 
high sea, are within an easy range of the guns of 
the Y-2, a military aircraft in state Y. 

What may the Y-2 lawfully do in each case ? 


In each instance the Y-2 may lawfully visit and 
search the neutral aircraft. 

(a) The B-17 should be released. 

(&) If the Y-2 is a member of the blockading 
squadron and if it meets the C-12 while the latter 
is engaged on the return voyage, the C-12 should be 
seized and held for prize court adjudication. If 
the Y-2 encounters the C-12 after the latter has 
completed the round trip journey, the C-12 should 
be released. If the Y-2 is not a member of the 
blockading squadron but meets the C-12 while the 
latter is on the return trip, the C-12 may be seized 
and held for prize court adjudication. 

(c) The D-20 should be released. 

(d) The E-30 should be released. 

(e) If the G-40 is no longer under special char- 
ter and if it has completed the journey for which 
it was hired, it should be released. 


Air law in general. — At the present time there 
are no binding conventional international law rules 
regulating the conduct of airplanes in war time. 
The need for effective law on this subject is great 
indeed, and it is to be hoped that the situation can 
be remedied in the near future. The use of air- 
planes in the Spanish Civil conflict and in the Sino- 
Japanese struggle has brought the law's gaps very 
vividly to public attention. Also the constant 


menace and threat of air bombardment in a future 
war emphasizes the necessity for the development 
of international air law. Strictly speaking, there- 
fore, since no binding rules exist, the Y-2 might 
technically be permitted to do anything it pleased 
with the assorted neutral craft herein involved. 
The word " lawfully" will be construed, however, 
as implying the existence of legal principles, and 
the solutions will be reached in part by carrying 
'over analogies from land and marine warfare into 
the air. As will be indicated later, the air weapon 
is sui generis in many respects, so that analogies 
are not always applicable, but they are none the 
less extremely useful in the formulation of the 
required rules. 

Naval War College discussions, — The subject of 
air law has been considered previously in Naval 
War College situations, notably, in 1928, 1935, and 
1936. As was stated in the 1936 situation : 

The introduction of aircraft as a means of warfare greatty 
modified the conduct of war upon the earth surface, on the 
water as well as on land. The earlier rules for warfare were 
concerned with surface combat. These rules could not in 
every instance be extended by analogy to aerial warfare, be- 
cause the forms of warfare were not analogous. There was 
an attempt on the part of some writers to extend the three 
mile maritime jurisdiction doctrine to the superjacent air. 
In this attempt the early recognition of the fact that the 
law of gravity did not act horizontally and vertically in 
the same manner, destroyed the analogy. Differences in 
speed and in other respects introduced other complications 
in attempts to extend maritime and land rules to the air. 
Aircraft were coming more and more to be used in war; 
therefore, rules had to be devised. The World War expe- 
riences and problems contributed valuable basal data for the 
determination of the nature of possible regulation of use of 
aircraft. The equipment of aircraft with radio introduced 
other problems. (International Law Situations, 1936, p. 39.) 


Can legal restraints on air warfare be made? — 
The feeling has been prevalent in some quarters 
that efforts to curb the use of aircraft in war are 
doomed to failure because this new weapon is so 
powerful that no belligerent would be willing to 
restrict the employment of this military arm. The 
devastation and destruction which airplanes may 
bring about, so the argument runs, will be so effec- 
tive in bringing the opponent to terms that here- 
after the sanctions for restraint will no longer be 
operative. Further, the possibilities of- "totali- 
tarian" wars between rival ideological groups 
makes it appear to some people that curbs would 
be of no value. This hypothesis that ruthlessness 
will "pay" and that legal restrictions will be foot- 
less, deserves examination. 

The arguments in favor of putting restraints on 
the use of aircraft may be summed up as follows : 

1. In the past, devastation has always been illegal 
when it has not been of military advantage. It has 
not profited a belligerent to destroy more life and 
property than he needs for the attainment of his 
military objective, namely, the subjection of the 
enemy. If a belligerent wins a verdict over a still 
prosperous foe, he is the richer and derives more 
benefit than if he had defeated a starved and 
exhausted enemy. 

There must be some reasonably close connection between 
the destruction of property and the overcoming of the 
enemy's army. (Manual, Rules of Land Warfare, 1914, 
Section 331.) 

The object of war in the military sense is to procure the 
complete submission of the enemy at the earliest possible 
period with the least possible expenditure of men and money. 
(Wilson and Tucker, International Law, 9th Edition, p. 250.) 


2. It is also always been held that it is to the 
advantage of all belligerents not to lapse into 

The advantage of having and of maintaining a regime 
under which the more gross and calamitous varieties of 
Schrecklichkeit are banned, will be apparent to the man on 
the street — who will be himself affected — and, one hopes, 
even to the most militarist governments. (J. M. Spaight, 
Airpower and War Eights, Second Edition, 1933, p. 29.) 

3. There has usually been also a certain amount 
of natural chivalry and humanitarianism in war- 
fare. These have underlain many of the war 
rules, the assumption being that there are certain 
things which human beings will not do to one an- 
other even in the heat of strife. 

Airships frequently returned from their expeditions with 
their full complement of bombs, because they have not been 
able to make out certain targets with sufficient accuracy. It 
would have been easy enough for them before returning to 
get rid of their bombs and drop them on any place over 
which they happened to fly, if they wanted to kill harmless 
citizens. (Spaight, op. cit., p. 14.) 

4. Another sanction for the laws of war has been 
the fear of retaliation. Restraint upon a belliger- 
ent has thus often been imposed by a dread of 
reprisals. Though these latter have never been 
successfully regulated by law, they have operated 
as a deterrent to lawless action. 

5. In the case of air warfare it has often been 
contended that indiscriminate bombing only stiff- 
ens the resistance of the enemy population, 
and that ruthlessness, therefore, carries with it its 
own sanction. If this were so universally there 
would be no military advantage in wholesale air 
bombardment of crowded cities and innocent 


The sanctions for the laws of war have thus 
rested upon common sense and practical consider- 
ations. Rules and conventions which stray far 
from the realities of belligerent strife become 
fruitless moral injunctions, but ethics and military 
necessities frequently combine, as above shown, 
into imposing, sensible restraints upon a bel- 

Air warfare and the sanctions of the Jatvs of war. 
— As previously indicated, the belief is current 
among various groups that the customary sanctions 
do not and cannot operate where air combat is con- 
cerned. These arguments may be summarized as 
follows : 

1. Contrary to the thesis that ruthless bombard- 
ment merely increases a nation's will to resist, is 
the view that devastation may in time weaken the 
morale of a belligerent state. The bombardments 
of Barcelona of March 1938, and the use of gas 
from the air by the Italians in Ethiopia are cited 
as examples of the way in which war from the sky 
can undermine the fighting spirit. The nerve-rack- 
ing tension, the sleepless nights, the perpetual sense 
of insecurity, the nightmare of sudden death in 
one 's own home or in those of friends and relatives, 
act as corrosives upon the iron will and tend to 
make a people wonder whether the ideals for which 
they think they are fighting are worth this holo- 
caust and carnage. 

It is not altogether true that the bombing of England had 
no moral effect for by moral effect is not meant only a sud- 
den, craven desire to surrender; and secondly, that air at- 
tacks on the large centers of populations were merely side 
shows in 1915-18, whereas in the next war they will be a 
primary operation * *. No doubt on the whole, Lon- 

don took the air raids with dignity and composure, but no 


one who is acquainted with the facts can admit that the 
people who left London to crowd into Maidenhead, Man- 
chester, Brighton, and other safer towns, were exclusively 
"Jews and Aliens." (Spaight, op. cit., pp. 8 and 9.) 

2. On the grounds of military necessity it is de- 
nied by many that there is no military advantage 
in bombing food supplies, communication centers, 
crops and civilian homes. This is to say that the 
line between military requirements and useless 
civilian damage can no longer be drawn. Wide 
scale air operations dealing death indiscriminately, 
and paralyzing normal civilian operations, may 
have a definite military objective, in that the war 
may be shortened. This line of reasoning is allied 
to the discussion above about civilian morale be- 
cause whatever tends to cause civilian resistance 
to crumble may be regarded as having a military 
objective. This of course is broadening the con- 
cept of military necessity in a fashion seldom pre- 
viously tolerated. The effectiveness of the air- 
plane, however, is so great and its potentialities 
for dealing deadly blows are so vast that it is said 
that air bombardments cannot be compared to the 
" unnecessary" damage committed by land and sea 
forces where the destruction is relatively so insig- 
nificant that it really does not "pay" and only 
causes useless loss unconnected with any genuine 
weakening of morale and resistance. 

If * * * some but not an excessive loss of life can be 
shown to be involved in operations which will enormously 
abbreviate the periods of wars and will reduce to a compara- 
tively trivial total the casualty lists and the huge but incal- 
culable sum of indirect losses consequent upon hostilities, it 
could be argued that humanity will gain and not lose from 
the recognition of the legitimacy of the new method. 
(Spaight, op. cit., p. 81.) 


3. As for chivalry, it is said that when ideologies 
clash the usual humanitarian feelings will be sub- 
merged. How, runs the query, can a Fascist and a 
Communist be expected to deal like gentlemen with 
one another when the only obligation which they 
feel is that of exterminating one another. As 
Spaight says " Condemnation or approval of any 
given bombardment will tend to vary with the ideo- 
logical bias of the commentator upon it". (The 
19th Century, Sept. 1938. Vol. 124, No. 739.) 

4. When it comes to retaliation as a sanction, 
those opposing the attempt to regulate air warfare 
declare that if an air-minded belligerent is quick 
enough and ruthless enough, he can give the enemy 
such a blow at the outset that there will be no pos- 
sibility for retaliation. Reprisals are a sanction 
only if the other side has the physical strength to 
threaten them. Therefore, a belligerent which has 
overwhelming supremacy in the air, and which can 
lay waste his opponent, need fear no retaliation and 
can hope for a speedy victory. These are the 
thoughts and dreams of those proposing the "War 
of Terror" which has the support of some strat- 
egists in some countries. 

Despite the cogency of some of these arguments, 
it is still worth attempting to elaborate some rules. 
The unrestricted war of the skies has many dev- 
otees and their plea for a relaxation of the cus- 
tomary restraints has a certain plausibility, but it 
cannot be presumed without more experience and 
evidence that air warfare will be exempt from the 
sanctions which land and sea combatants have 
always encountered. To date, the existence of 
rules has been found to be of advantage. Upon 
that basis the effort to formulate a practical code 


of the air should go forward, the drafters always 
bearing in mind the special nature of aircraft and 
the need for practical considerations. Even if a 
code between belligerents seems of dubious efficacy, 
there would be an obvious improvement in the re- 
lations between belligerents and neutrals if law on 
this topic were developed. A belligerent may well 
fear neutral retaliation, if not that of his opponent, 
and there would be a gain to all states through the 
making of effective regulations. 

Actual and projected conventions and rules for 
the air. — The first rule concerning air warfare was 
drafted at the First Hague Peace Conference in 
1899. That convention prohibited the discharge 
of projectiles from balloons for a period of 5 years. 
Before the convening of the second Hague confer- 
ence in 1907, many states saw some of the possi- 
bilities of air warfare, and were therefore unwill- 
ing to renew their adherence to the 1899 conven- 
tion. The only other pre-war regulation of air 
combat is found in Article 25 of Convention IV, 
Respecting the Laws and Customs of War on Land, 
which stipulated that "The attack or bombard- 
ment, ~by whatever means, of towns, villages, habi- 
tations, or buildings which are not defended, is pro- 
hibited." Much dispute has raged as to whether 
this article, being a part of a land convention, 
covers the air, though the words " whatever means" 
would seem to be rather comprehensive. The de- 
bate as to the intent of this regulation seems rather 
futile in any event, because only undefended 
places are immune, and it is never hard for bellig- 
erents to discover that a particular place which 
they wish to bombard is actually " defended." 

107530 — 40 2 


This same problem as to what is defended and 
what is not, arose in connection with Article I of 
Hague Convention IX concerning naval bombard- 
ment. During the world war, therefore, there 
was little effective legal regulation of air warfare 
which increased in magnitude and importance so 
tremendously at that time. 

There was uncertainty before 1914 also as to 
jurisdiction over the air, some contending that the 
air above a certain height should be free, each 
subjacent state having an air belt comparable to 
marginal seas. The regulations of neutrals dur- 
ing the war and the experiences of that conflict 
gave impetus to the formulation of the present 
rule that each subjacent state has complete juris- 
diction over all the air space above it. The absurd- 
ity of an air belt in the light of the laws of physics 
which decree that an object dropped from a great 
height will hit harder than an object dropped 
nearer the ground soon became manifest and post- 
war conventions and drafts have recognized each 
state's jurisdiction up to the heavens. 

Post-war conventions and proposals. — A num- 
ber of treaties have been made since the war which 
lay down rules for aircraft in peace time. The first 
of these was the Convention on the Regulation 
of Aerial Navigation of 1919 which states in Ar- 
ticle I : 

The high contracting parties recognize that every power 
lias complete and exclusive sovereignty over the air space 
above its territory. 

Another noteworthv convention was that made 
in Habana in 1928 on Commercial Aviation, and 
though its provisions are not designed for w r ar, the 
following articles are relevant to this discussion: 


Article 3. The following shall be deemed to be state air 
craft : 

(a) Military and Naval aircraft. 

(b) Aircraft exclusively employed in state service, such 
as posts, customs, police. 

Every other aircraft shall be deemed to be a private air- 

All state aircraft other than military, naval, customs, and 
police aircraft shall be treated as private aircraft and as 
such shall be subject to all the provisions of the present 

Following the Washington Limitation of Arms 
Conference of 1922 a commission of jurists met at 
The Hague and drafted a convention on air war- 
fare. In this convention the criterion of defended 
or undefended was abandoned, and air bombard- 
ment was regulated in terms of objectives. The 
f ramers of these rules definitely prohibited indis- 
criminate bombardment, and endeavored to furnish 
a precise definition of the objectives which alone 
may be attacked. The following articles of this 
draft are the ones most relevant to this discussion : 

Article 6. (1) The transmission by radio by a vessel or 
an aircraft, whether enemy or neutral, when on or over the 
high seas of military intelligence for the immediate use of 
a belligerent is to be deemed a hostile act and will render 
the vessel or aircraft liable to be fired upon. 

(2) A neutral vessel or neutral aircraft which transmits 
when on or over the high seas information destined for a 
belligerent concerning military operations or military forces 
shall be liable to capture. The Prize Court may condemn 
the vessel or aircraft if it considers that the circumstances 
justify condemnation. 

(3) Liability to capture of a neutral vessel or aircraft on 
account of the acts referred to in paragraphs (1) and (2) 
is not extinguished by the conclusion of the voyage or flight 
on which the vessel or aircraft was engaged at the time, 
but shall subsist for a period of one year after the act com- 
plained of. 


Article 30. In case a belligerent commanding officer con- 
siders that the presence of aircraft is likely to prejudice 
the success of the operations in which he is engaged at the 
moment, he may prohibit the passing of neutral aircraft 
in the immediate vicinity of his forces or may oblige them 
to follow a particular route. A neutral aircraft which does 
not conform to such directions, of which he has had notice 
issued by the belligerent commanding officer, may be fired 

Article 37. Members of the crew of a neutral aircraft 
which has been detained by a belligerent shall be released 
unconditionally, if they are neutral nationals and not in 
the service of the enemy. If they are enemy nationals or 
in the service of the enemy, they may be made prisoners of 

Passengers are entitled to be released unless they are in 
the service of the enemy or are enemy nationals fit for mili- 
tary service, in whicli cases they may be made prisoners of 

Release may in an}* case be delayed if the military in- 
terests of the belligerent so require. 

The belligerent may hold as prisoners of war any mem- 
ber of the crew or any passenger whose service in a flight 
at the close of which he has been captured has been of 
special and active assistance to the enemy. 

Article 49. Private aircraft are liable to visit and search 
and to capture by belligerent military aircraft. 

Article 50. Belligerent military aircraft have the right 
to order public non-military and private aircraft to alight 
in or proceed for visit and search to a suitable locality rea- 
sonably accessible. 

Refusal, after warning, to obey such orders to alight or 
to proceed to such a locality for examination exposes an air- 
craft to the risk of being fired upon. 

Article 53. A neutral private aircraft is liable to capture 
if it— 

(a) Resists the legitimate exercise of belligerent rights. 

(h) Violates a prohibition of which it has had notice issued 
by a belligerent commanding officer under article 30. 

(r) Is engaged in unneutral service. 


(d) Is armed in time of war when outside the jurisdiction 
of its own country. 

(e) Has no external marks or uses false marks. 

(/) Has no papers or insufficient or irregular papers. 

(g) Is manifestly out of the line between the point of 
departure and the point of destination indicated in its papers 
and after such enquiries as the belligerent may deem neces- 
sary, no good cause is shown for the deviation. The aircraft, 
together with its crew and passengers, if any, may be detained 
by the belligerent, pending such enquiries. 

(h) Carries, or itself constitutes, contraband of war. 

(i) Is engaged in breach of a blockade duly established and 
effectively maintained. 

(k) Has been transferred from belligerent to neutral na- 
tionality at a date and in circumstances indicating an inten- 
tion of evading the consequences to which an enemj^ aircraft, 
as such, is exposed. 

Provided, That in each case (except (&)) the ground for 
capture shall be an act carried out in the flight in which the 
neutral aircraft came into belligerent hands, i. e., since it left 
its point of departure and before it reached its point of 

Article 56. A private aircraft captured upon the ground 
that it has no external marks or is using false marks, or that 
it is armed in time of war outside the jurisdiction of its own 
country, is liable to condemnation. 

A neutral private aircraft captured upon the ground that 
it has disregarded the direction of a belligerent commanding 
officer under article 30 is liable to condemnation, unless it can 
justify its presence within the prohibited zone. 

In all other cases, the prize court in adjudicating upon any 
case of capture of an aircraft or its cargo, or of postal corre- 
spondence on board an aircraft, shall apply the same rules as 
would be applied to a merchant vessel or its cargo or to postal 
correspondence on board a merchant vessel. 

Article 58. Private aircraft which are found upon 1 visit 
and search to be neutral aircraft liable to condemnation upon 
the ground of unneutral service, or upon the ground that 
they have no external marks or are bearing false marks, may 
be destroyed, if sending them in for adjudication would be 


impossible or would imperil the safety of the belligerent 
aircraft or the success of the operations in which it is engaged. 
Apart from the cases mentioned above, a neutral private air- 
craft must not be destroyed except in the gravest military 
emergency, which would not justify the officer in command 
in releasing it or sending it in for adjudication. 

This last article is similar to Article 49 of the 
Declaration of London which is as follows : 

As an exception a neutral vessel captured by a belligerent 
ship and which would be liable to condemnation, may be 
destroyed if the observance of Article 48 would involve dan- 
ger to the ship of war or to the success of the operation in 
which she is at the time engaged. 

In all these proposals for dealing with aircraft 
the rules are either analogies or adaptations of an- 
alogies drawn from the generally accepted rules of 
naval and land warfare. Do these analogies hold ? 
Should special rights be conferred upon airplanes ? 
The answer frequently given is to the effect that 
special weaknesses or special ability do not bring 
special immunities or special privileges, and that 
new weapons must adapt themselves to the already 
accepted rules. Some modifications, however, are 
in order. Manifestly visit and search of an air- 
plane by an airplane is quite different from a sim- 
ilar process on the surface. Deviation in certain 
circumstances must therefore be allowed, and in 
general, the fact that airplanes operate in a three 
dimensional realm, means that old regulations must 
take cognizance of the new physical problems. 

Preliminary Harvard draft code. — Recently, re- 
search in international law under the auspices of 
the Harvard Law School has been made concern- 
ing rights and duties of neutral states in naval and 
aerial war. Though the research draft is not offi- 
cial, the following article, No. Ill, gives an indica- 


tion of the trend in adapting established principles 
to the needs of the new agency : 

(1) A belligerent commissioned military aircraft may 
signal a merchant vessel to stop as by radio or by firing a 
machine gun burst across its bows. 

(2) If sea conditions permit the aircraft to alight, the 
aircraft shall alight and the procedure applicable to surface 
vessels shall be followed. 

(3) If the belligerent aircraft is unable to alight, it may 
require the vessel to proceed on its course under instructions 
as to speed until the sea moderates or until a naval vessel of 
the belligerent appears ; if visit and search are not effected 
by either means within six hours, or if the aircraft does not 
remain within sight or hearing of the merchant vessel, the 
vessel may resume its course at normal speed. 

(4) If the vessel when summoned does not stop, attempts 
to escape, resists visit and search, or does not proceed ac- 
cording to instructions, it may be compelled by force to stop 
and the belligerent shall not be responsible for resulting 
injury to life or property. 

Assumptions in this case. — In arriving at the 
solutions of the problems presented, it has been as- 
sumed that the neutral plane in each case is either 
a private plane or is to be treated as such. (See 
Art. Ill of Habana Convention op. cit.) It is 
further assumed that the papers of these planes 
are in order, that the craft are plainly marked, 
that it has been possible to signal understandably 
for visit and search, that all parties have agreed 
upon the definition of contraband, that an effec- 
tive blockade is being maintained, that the neu- 
trals knew of the blockade, and that the planes 
were all unarmed. It is therefore possible now to 
leave the general considerations and to take up the 
specific issues raised in this situation. 

Visit and search by airplanes. — It is agreed in 
principle that belligerent airplanes have the right 


to visit and search not only neutral surface vessels 
but also neutral aircraft. Agreement upon the 
application of the principle in actual practice is 
difficult to achieve, divergent views having been 
propounded in various quarters at different times. 
At the meeting of the jurists at The Hague in 1923 
the delegations were not in harmony on this point 
of the visit and search of surface craft. The 
Dutch representatives particularly were apprehen- 
sive lest the employment of aircraft involve the 
right of deviation. The jurists had to content 
themselves in Article 49 with the simple statement 
that " Private aircraft are liable to visit and search 
and to capture by belligerent military aircraft." 
The technique by which this was to be accomplished 
was not agreed upon. As the comment in the pro- 
posed draft says : 

No article on the subject of the exercise by belligerent 
military aircraft of the right of visit and search of mer- 
chant vessels has secured the votes of a majority of the 
Delegations, and therefore no article on the subject is in- 
cluded in the code of rules. Nevertheless, all the Dele- 
gations are impressed with the necessity of surrounding with 
proper safeguards the use of aircraft against merchant 
vessels. Otherwise excesses analogous to those which took 
place during the recent war might be reproduced in future 

The reason why no agreed text has been adopted by the 
Commission is due to divergence of view as to what action 
an aircraft should be permitted to take against a merchant 

The aircraft in use today are light and fragile things. 
Except in favourable circumstances they would not be able 
to alight on the water and send a man on board a mer- 
chant vessel at the spot where the merchant vessel is first 
encountered (visite sur place). To make the right of visit 
and search by an aircraft effective it would usually be nee- 


essary to direct the merchant vessels to come to some con- 
venient locality where the aircraft can alight and send 
men on board for the purpose. This would imply a right 
on the part of the belligerent military aircraft to compel 
the merchant vessel to deviate from her course before it was 
in possession of any proofs derived from an examination 
of the ship herself and her papers that there were circum- 
stances of suspicion which justified such interference with 
neutral trade. If the deviation which the merchant vessel 
was obliged to make was prolonged, as might be the case 
"if the aircraft was operating far from land, the losses and 
inconvenience imposed on* neutral shipping would be very 

Is or is not a warship entitled to oblige a merchant vessel 
to deviate from her course for the purpose of enabling the 
right of visit and search to be carried out? Would an air- 
craft be exercising its rights in conformity with the rules to 
which surface warships are subject if it obliged a merchant 
vessel to deviate from her course in this way? Even if a 
warship is entitled on occasion to oblige a merchant vessel 
to deviate from her course before visiting her, can a similar 
right be recognised for military aircraft without opening 
the door to very great abuses ? 

These are the questions upon which the views entertained 
by the Delegations differed appreciably, and indicate the 
reasons why it was not found possible to devise any text on 
which all parties could agree. 

With regard to visit and search of aircraft by 
aircraft, however, it was conceded by all parties, 
as recorded in Article 50, that the special nature 
of the craft made deviation imperative. Two air- 
planes simply caimot hover in mid-air while one 
of them attempts to inspect the other. The laws 
of gravity demand a change in the laws of nations. 
Thus it is permitted to a belligerent airplane to 
order the neutral craft to alight in or proceed to 
"a suitable locality reasonably accessible" for visit 
and search. The principle of the right of devia- 
tion is thus established. 


Problems of signalling and of landing. — Accord- 
ing to the general rule, the belligerent plane must 
signal the neutral plane and then ask it to alight. 
It is upon this question as to the method of sig- 
nalling that international agreement is necessary. 
Should the belligerent plane be expected to maneu- 
vre into a position from which it can fire a shot 
across the propeller (bow) of the neutral plane? 
Some authorities on air matters maintain that the 
pilot of a neutral plane would not be able to know 
when such a shot had been fired and that he w T ould 
be informed of the order to land only if the shot 
actually hit his plane. In such a case, aircraft 
being more fragile and delicate than surface ves- 
sels, the damage committed might be out of all 
proportion to the military needs. For this reason 
it is frequently suggested that summons by shot is 
impractical and unjustifiable, and that communi- 
cation or summons must be made in some other 
fashion, probably by radio. 

A radio summons would be satisfactory if there 
were international agreement standardizing air- 
plane radios and airplane signals. At the present 
time there is such uniformity among surface ves- 
sels' radio equipment which are tuned in frequently 
to a particular wave length for the reception of 
distress signals. In the air, however, no belliger- 
ent plane now could be certain that a neutral air- 
plane was equipped to receive a radio summons. 
Misunderstanding and confusion can be eliminated 
only by the adoption of an international code on 
this matter. Assuming that this difficulty has been 
overcome, other problems arise. If the belliger- 
ent is certain that the neutral plane has under- 


stood Ihe summons and is deliberately not heed- 
ing it, is it justified in using force to bring the 
neutral plane to? On the surface such a right to 
the exercise of sufficient force to carry out a sum- 
mons to halt exists, but this right may be exercised 
without necessarily destroying or damaging 
seriously the fleeing ship. 

In the air, however, the frailty of the neutral 
plane may be such that any shot capable of bring- 
ing it to, might also destroy it. Some experts, 
therefore, would deny the belligerent the right to 
use force in this instance, contending that the 
safety of the passengers and personnel of the plane 
ought not to be put in jeopardy merely because of 
a refusal to land for purposes of visit. This, how- 
ever, w r ould constitute a serious restriction upon 
belligerent rights, a restraint which in practice in- 
dubitably would be unacceptable. Provided an ac- 
curate means for summoning can be agreed upon, 
it does not seem unreasonable to hold a neutral 
plane liable to the consequences of its own refusal 
to heed a legitimate summons even though those 
consequences be of the most serious sort. If the 
neutral plane in such circumstances is destroyed 
with complete loss of the lives and property on 
board, it was the fault of the neutral who took the 
risk, not the responsibility of the belligerent. 

Other questions deserve attention. Suppose the 
neutral plane is encountered over the high seas and 
cannot alight upon the water ? Suppose the weather 
is so bad that a sudden landing would be extremely 
perilous ¥ Suppose the neutral plane does not have 
sufficient fuel to enable it to deviate and still reach 
its original destination 1 ? What is the meaning of 


"unreasonably accessible"? The preliminary 
Harvard draft code, previously cited, attempts to 
answer these queries. Some such standard conven- 
tional arrangement is indeed an immediate need if 
there is to be any satisfactory regulation of air 
law. In all probability the belligerent will have to 
be accommodating in regard to supplying extra 
fuel if the need occurs, and will have to recognize 
weather conditions and the suitability of landing 
arrangements, with surface craft cooperating in 
the visit and search effort as suggested in the Har- 
vard code. As to " reasonable accessibility" a ra- 
dius of 50 miles seems a feasible limit for deviation 
at the present time. Future prize court interpre- 
tations of the word " reasonable" will help to evolve 
a satisfactory set of rulings on this as yet undeter- 
mined matter. 

Attack on Chinese commercial airplane. — One of 
the first incidents involving an encounter between a 
military and a commercial plane was that which 
occurred in August 1938 near Macao in China. Al- 
though technically in this case there was no war 
and although visit of a neutral plane was not in- 
volved, the case sets an interesting precedent. Par- 
ticularly to be noted is the Japanese contention that 
the commercial plane was not clearly marked. 
The fact that military and commercial aircraft or- 
dinarily are not easily distinguishable is an im- 
portant one for international law. If confusion 
is to be avoided, agreement must be reached upon 
the proper marking of nonmilitary planes. Other- 
wise "regrettable incidents" w T ill continue to occur. 


Text of a note presented to the Japanese Foreign 
Office by the American Ambassador at Tokyo, upon 
instruction of the Secretary of State : 

August 26, 1938. 
Excellency : 

Acting under instructions, I have the honor on behalf of 
my Government to protest to Your Excellency against the 
unwarranted attack on August 24, 1938, near Macao, by 
Japanese airplanes upon a commercial airplane operated by 
the China National Aviation Corporation resulting in the 
total destruction of the commercial airplane, the loss of the 
lives of a number of noncombatant passengers, and the en- 
dangering of the life of the American pilot. 

This attack upon the plane has aroused public feeling in 
the United States. 

I am directed to point out to Your Excellency, with refer- 
ence to the attack in question, that not only was the life of 
an American national directly imperilled but loss was also 
occasioned to American property interests as the Pan Amer- 
ican Airways has a very substantial interest in the China 
National Aviation Corporation. 

I am directed to invite the special attention of Your 
Excellency to the following points in the account of Pilot 
Wood : the China National Aviation Corporation plane was 
pursued by Japanese planes which started machine gun- 
ning; after the China National Aviation Corporation plane 
had successfully landed it was followed down by Japanese 
pursuit planes which continued to machine gun it until it 
had sunk; and when Pilot Wood started swimming across 
the river he was followed by one of the Japanese planes 
which continued to machine gun him. 

My Government desires to express its emphatic objection 
to the jeopardizing in this way of the lives of American as 
well as other noncombatant occupants of unarmed civilian 
planes engaged in clearly recognized and established com- 
mercial services over a regularly scheduled air route. 

I avail myself (etc.) 

Joseph C. Grew. 

(Press Keleases, Vol. XIX, No. 465, pp. 146-147.) 


Following is the text of the Japanese note, 
handed to United States Ambassador Joseph C. 
Grew tonight, replying to the American protest of 
August .26 against the destruction of a Chinese- 
American airliner near Canton August 24 (Tokyo, 
Aug. 31) : 

Monsieur l'Ambassadeub : 

I have the honor to acknowledge Your Excellency's note 
of August 26 stating Your Excellency's protest under in- 
structions and on behalf of the American Government 
against an unwarranted attack August 24 near Macao by 
Japanese airplanes upon a commercial airplane of the 
China National Aviation Corporation resulting in the 
total destruction of said Chinese plane and the loss of the 
lives of a number of its passengers and endangering the life 
of its American pilot. 

The incident was caused by the C. N. A. C. plane which, 
within the Japanese field of operations, acted in such a 
manner as invited suspicions of its being a Chinese military 
craft, as stated in the following report, and which was 
consequently pursued and attacked by our naval planes in 
the belief that it was an enemy plane. 

While it is to be regretted that this resulted in endanger- 
ing the life of an American citizen who happened to be 
the pilot of the plane, as well as the death or wounding 
of noncombatant passengers and crew, the Japanese Gov- 
ernment hold the view that the action of their naval planes 
was not unwarranted in the light of the above-mentioned 

It is also their opinion that the company to which the 
aircraft in question belonged being a Chinese juridical 
person, the incident is not one which involves Japan directly 
with any third power. 

However, I desire to add that because of the wide dis- 
crepancies between the pilot's accounts, as given in Your 
Excellency's note, and reports in the hands of the Japanese 
Government, further investigations were instituted and the 
following new report has been received, which substantially 
confirms what Mr. Horinouchi (Vice Minister for Foreign 


Affairs) on the occasion of Your Excellency's visit on the 
26th stated on the basis of information then available. 

I avail myself of this opportunity to renew to Your Ex- 
cellency assurances of my highest consideration. 


On the morning of the 24th instant five Japanese naval 
airplanes, proceeding in the direction of the Canton-Han- 
kow railway, unexpectedly sighted over Chiautao Island, 
at 9:30 a. m., a large-type land plane, bearing no distin- 
guishing mark, some 2,000 meters away to the north, which 
was flying toward the west at an altitude of about 2,000 
meters, and attempted to approach the plane for the pur- 
pose of identification. 

The large plane in question, as soon as it discovered our 
naval planes approaching, abruptly turned in a northwest- 
erly direction and took flight at full speed, hiding itself in 
the clouds. The approaching movement of the naval planes 
were made for the purpose of ascertaining the nature of 
the land plane. 

However, seeing the plane flee from them, our air squad- 
ron concluded in the light of their past experiences that it 
was an enemy plane which came either to attack our war- 
ships or to make reconnaisance and accordingly took an of- 
fensive position by placing two planes above and three 
planes below the clouds. Soon after, our planes lying in 
wait below the clouds, discovering the supposedly enemy 
plane, pursued and attacked it. 

The plane continued to flee by taking advantage of scat- 
tered clouds, but was hard pressed by our squadron and 
finally landed in the river on the south side of the delta 
which lies sixteen kilometers west of Hungmenchikow. 
From the time they first sighted the plane until the moment 
it landed our planes were situated directly behind it for 
most of the time, so that it was difficult to ascertain its 
character, and our planes were throughout in the belief that 
the land plane was an enemy craft. 

As soon as the latter landed, however, our planes de- 
scended in order to inspect the spot. When they reached a 
point above the land plane where they could better distin- 
guish the type of plane, a doubt arose as to its exact type. 


Our planes therefore immediately stopped their attack. As 
stated above, there was some time, though very brief, after 
the landing of the said plane until doubt came to be enter- 
tained as to its nature, and during that brief period there 
were some among our craft which continued the attack, 
but there was absolutely no more shooting thereafter. 

Our naval planes then dived to twenty meters above the 
water and inspected the landed plane, whereupon the plane 
in question was found to be an all-metal Douglas passenger 
plane with no painted mark except a Chinese character sig- 
nifying "mail" marked on the upper face of its right wing 
and on the right side of its body. Our planes left without 
firing. Our planes saw on the landed plane the pilot and 
also a few passengers near the entrance of the passenger 
compartment in the rear, but they thought as the spot was 
close to the bank of the river these men would reach the 
shore (Press Releases, Vol. XIX, No. 466, pp. 156-158.) 

Sending in to a prize court. — If, in the present 
case, visit and search of the neutral planes yields 
evidence of guilt, the craft should be sent in for 
prize court adjudication. It must be remembered 
that search is not an inquisition, that there must be 
legal grounds for holding the plane, that mere 
suspicion is not enough, and that visit and search 
are an enquiry, not a prosecution. 

Whereas, according to the principles universally acknowl- 
edged, a belligerent ship of war has, as a general rule and 
except for special circumstances, the right to stop in the open 
sea a neutral commercial vessel and to proceed to visit and 
search it to assure himself whether it is observing the rules 
of neutrality, especially as to contraband ; 

Whereas, on the other hand, as the legality of every act 
going beyond the limits of visit and search depends upon 
the existence either of contraband trade or of sufficient rea- 
sons to believe that there is such, 

as, in this respect, it is necessary to confine oneself to rea- 
sons of a juridical nature; * * * 

as the information possessed by the Italian authorities was 
of too general a nature and had too little connection with 


the aeroplane in question to constitute sufficient juridical 
reasons to believe in any hostile destination whatever and, 
consequently, to justify the capture of the vessel which was 
transporting the aeroplane. (The Carthage, G. G. Wilson, 
The Hague Arbitration Cases, p. 365.) 

Airplanes and contraband. — The Jurists' Code 
envisages the seizure of neutral planes on the 
ground of carrying contraband (Art. 53, Sec. i). 
Undoubtedly in any future war belligerents will 
attempt to intercept contraband commerce by air 
as they have by sea, though special schemes for cer- 
tification of neutral airships like one outlined in 
the preliminary Harvard Code may go into effect 
and so obviate the usual contraband rules. The 
problem of what constitutes contraband is not one 
that needs to be resolved here. Possibly every ar- 
ticle will be contraband, or perhaps the concept 
will disappear entirely with neutrals and belliger- 
ents agreeing instead upon some sort of certificate 
system. In this instance, if the B-17 were inter- 
cepted while actually carrying contraband, the 
plane would be liable to seizure. The air code is 
thus more severe than the surface law rules, for 
according to the jurists' plan, the vessel is liable 
merely for the carriage of contraband while sur- 
face merchant ships are not similarly liable unless 
some connection between the ownership of the ves- 
sel and that of the goods can be established. That 
is, if the ship's owners can be presumed to know 
that the ship is carrying contraband, the ship may 
then be seized. According to the Declaration of 
London presumption of such knowledge exists if — 

(Article 40) . * * * The contraband forms, either by 
value, by weight, by volume, or by freight, more than half 
the cargo. 

167533—40 3 


The penalty for the carriage of contraband, how- 
ever, terminates with the deposit of the goods. As 
the Jurist's Code states in Article 53 : 

The ground for capture shall be an act carried out in the 
flight in which the neutral aircraft came into belligerent 
hands, i. e., since it left its point of departure and before it 
reached its point of destination. 

The rule is the same for surface ships. 

A capture is not to be made on the ground of a carriage of 
contraband previously accomplished and at the time com- 
pleted. (Declaration of London, Art. 38.) 

A vessel's liability to seizure for the carriage of contra- 
band usually terminates with the deposit of the contraband 
cargo, unless the voyage has been accomplished by means of 
false or simulated papers. (Evans, Cases on International 
Law, pp. 700, 701 ff.) 

Since the B-17 is encountered "later," that is, 
presumably after it has completed the carriage of 
the contraband, it should be released by the Y-2, 
which should make a record of the visit and search 
in the B-17's log. 

Should the air law he more rigorous? — The sug- 
gestion has been made that the application of the 
regular maritime rules by analogy to the air is 
unsatisfactory. The argument runs that since an 
airplane travels so much faster than a surface ship, 
and since it is capable of making so many more 
voyages, the penalty should be more severe. The 
greater effectiveness of the plane for the carriage 
of goods should make for an extension of the liabil- 
ity, according to this view. Also, it is said that 
because of the greater difficulty of intercepting air- 
craft, the penalty when they are caught should be 
correspondingly more stringent. The law in the 
future may move in this direction, but to date it 


has not, and the solution must be reached on the 
basis of the established practice in maritime cases. 

Airplanes and blockade. — There has not yet been 
in practice any attempt to maintain a blockade by 
airplanes but all discussions on the laws of war- 
fare assume that such a blockade may some day 
be tried. The jurists in 1923 in Article 53 assumed 
such a contingency and gave a belligerent the right 
to seize on the grounds of violation of blockade. 
Students of the problem are in accord on the point 
t&at a blockade maintained by airplanes alone 
would be neither feasible nor possible. It is al- 
ways in conjunction with surface vessel that an 
air blockade is considered. It is foreseen, how- 
ever, that due to the three-dimensional activity of 
the airplane some change in the type of blockade 
may well come about, and that instead of a block- 
ade being thought of in terms of a "line" it will 
be conceived of as more of a zone. Because of the 
ease with which planes might get around the con- 
ventional blockade, an increase in the belligerent's 
blockade radius may well be expected. In some 
recent discussions of the problem, it was agreed 
tentatively that a blockade might extend as a zone 
for 50 miles to sea from the enemy coastline. 

Suggestions are not lacking that the concept of 
an air blockade is erroneous, and that it would be 
better to discard entirely blockade terminology 
from air law discussions, substituting instead the 
phrase "barred zone." Within such an area all 
travel by neutral or belligerent aircraft might be 
prohibited upon penalty of being fired upon. Visit 
and search as an institution would not be present 
in such a zone. Something analogous to the situ- 
ation contemplated in Article 30 of the Jurists 7 


Code may prove more feasible for the air than the 
classic blockade. 

In case the belligerent commanding officer considers that 
the presence of aircraft is likely to prejudice the success of 
the operation in which he is engaged at the moment, he may 
prohibit the passing of neutral aircraft in the immediate 
vicinity of his forces, or may oblige them to follow a par- 
ticular route. A neutral aircraft which does not conform to 
such directions, of which he has had notice issued by the 
belligerent commanding officer, may be fired upon. 

The subject of aircraft and blockade was 
thoroughly discussed in the Naval War College In- 
ternational Law Situation in 1935. 

A blockade maintained by surface vessels only without 
means of preventing or rendering dangerous the passage of 
aircraft or submarines would be a "paper blockade" insofar 
as such craft were concerned even though proclaimed to in- 
clude these. Any seaplane met at sea by a vessel of war may 
be visited and searched to determine its relation to the hostil- 
ities, and it may be treated according to the evidence found. 
In recent years, on account of improved means of communi- 
cation, it would be difficult to prove ignorance. 

Professor J. M. Spaight in his Air Power and 
War Rights, Second Edition, p. 394 et seq., ex- 
plores the problems of air blockade very thorough- 
ly, and suggests that "a different degree of effec- 
tiveness will probably be demanded in the air, be- 
cause of the greater difficulty of controlling pas- 
sage in that element.' ' 

Penalty for breach of blockade. — Assuming in 
this situation, however, that an effective blockade 
in the air is being maintained, it is important to 
decide just when the C-12 was encountered by the 
Y-2. If the C-12 is on the outward lap of the 
voyage to the blockaded port, it is liable for breach 
of blockade. 


A vessel which in violation of blockade has left a blockaded 
port or has attempted to enter the port, is liable to capture 
so long as she is pursued by a ship of the blockading force. 
(Declaration of London, Art. 20.) 

If a vessel has succeeded in escaping from a blockaded port, 
liability to capture continues, according to American opinion, 
until the completion of the voyage ; but with the termination 
of the voyage, the offense ends. (Naval -Instructions Gov- 
erning Maritime Warfare, June 30, 1917, No. 31.) 

Therefore, if the Y-2 is a part of the blockading 
force, and meets the C-12 while the latter is pro- 
ceeding from the port of O, the C-12 may be seized. 
However, if the latter has completed the round trip, 
liability has ceased and the C-12 should be released. 
According to the traditional Anglo-American opin- 
ion as explained by C. C. Hyde, International Law, 
Vol. II, Page 682, the C-12 is still liable on the re- 
turn voyage when met by the Y-2 even if the latter 
is not a member of the blockading squadron. 

Further Comment on Blockade. — 

No term in the whole range of maritime law has been the 
subject of greater abuse than that of blockade ; and, as it was 
not contended that aircraft could in their present stage of 
development maintain a blockade in the same sense that sur- 
face ships can do, there was evident reason to apprehend that 
the anticipatory application to their activities of the term 
blockade would inject into the law an additional element of 
uncertainty and confusion capable of vast extension. Under 
the other provisions of the rule a considerable measure of 
power is conceded to belligerents in regard to the control of 
the movements of aircraft in the neighborhood of their mili- 
tary operations or military forces, this measure of control 
would evidently be helpful to a surface force maintaining a 
blockade, and to a land force maintaining a siege. Whether 
it is desirable to go further is a question for mature con- 
sideration. (John Bassett Moore, International Law & Some 
Current Illusions & Other Essays, 1924, p. 207.) 


"Blockade" is here used in the same sense in which it is 
employed in Chapter 1 of the Declaration of London, that 
is to say, an operation of war for the purpose of preventing 
by, the use of warships ingress or egress of commerce to or 
from a defined portion of the enemy's coast. It has no 
reference to a blockade enforced without the use of warships, 
nor does it cover military investments of particular local- 
ities on land. These operations, which may be termed 
"aerial blockade," were the subject of special examination 
by the experts attached to the various Delegations, who 
framed a special report on the subject for consideration by 
the Full Commission. The conditions contemplated in this 
sub-head are those of warships enforcing a blockade at 
sea with aircraft acting in co-operation with them. As the 
primary elements of the blockade will, therefore, be mari- 
time, the recognised principles applicable to such blockade, 
as for instance, that it must be effective (Declaration of 
Paris, Art. 4), and that it must be duly notified and its 
precise limits fixed, will also apply. This is intended to be 
shown by the use of the words "breach of blockade duly 
established and effectively maintained" in the text of the 

It is too early yet to indicate with precision the extent 
to which the co-operation of aircraft in the maintenance of 
blockade at sea may be possible ; experience alone can show. 
Nevertheless, it is necessary to indicate the sense in which 
the Commission has used the word "effective." As pointed 
out in the Declaration of London, the effectiveness of a 
blockade is a question of fact. The word "effective" is in- 
tended to ensure that it must be maintained by a force 
sufficient really to prevent access to the enemy coast-line. 
The prize court may, for instance, have to consider what 
proportion of surface vessels can escape the watchfulness 
of the blockading squadrons without endangering the effec- 
tiveness of the blockade; this is a question which the prize 
court alone can determine. In the same way, this question 
may have to be considered where aircraft are co-operating 
in the maintenance of a blockade. 

The invention of the aircraft cannot impose upon a bellig- 
erent who desires to institute a blockade the obligation to 
employ aircraft in co-operation with his naval forces. If 


he does not do so, the effectiveness of the blockade would 
not be affected by failure to stop aircraft passing through. 
It is only where the belligerent endeavours to render his 
blockade effective in the air-space above the sea as well as 
on the surface itself that captures of aircraft will be made 
and that any question of the effectiveness of the blockade 
in the air could arise. 

The facility with which an aircraft, desirous of entering 
the blockaded area, could evade the blockade by passing out- 
side the geographical limits of the blockade has not escaped 
the attention of the Commission. This practical question 
may affect the extent to which belligerents will resort to 
blockade in future, but it does not affect the fact that where 
a blockade has been established and an aircraft attempt to 
pass through into the blockaded area within the limits of 
the blockade, it should be liable to capture. 

The Netherlands Delegation proposed to suppress (i) on 
the grounds that air blockade could not be effectively main- 
tained, basing its opinion on its interpretation of the ex- 
perts' report on the subject. 

The British, French, Italian and Japanese Delegations 
voted for its maintenance. The American Delegation voted 
for its maintenance ad referendum. (Jurists' Keport, 1923, 
Comment upon Art. 53, Sec. i.) 

Visit and search and air mail. — An airplane car- 
rying mail is not immune from visit and search. 
According to Hague Convention XI, Relating to 
the Exercise of the Right of Capture in Naval War 
"the inviolability of postal correspondence does 
not exempt a neutral mail ship from the laws and 
customs of maritime war as to neutral merchant 
ships in general" (Art. 2). There is no legal rea- 
son, therefore, why the Y-2 may not order the 
D-20 to alight for visit and search. Though mail 
ships are not immune from belligerent visit and 
search, private correspondence on board is sup- 
posed to be inviolable (Hague Convention XI, Art. 
1). The World War experience demonstrated, 


however, that this inviolability is exceedingly un- 
certain, the result of the concessions made by the 
United States being in substance that private mail 
may be opened in order that the belligerent may 
determine whether it is inviolable or not. The 
Allied contention during the war was that the mail 
privileges were being abused by private persons 
who inserted contraband articles into their cor- 
respondence. The whole subject of mails was 
thoroughly reviewed and studied in Situation II, 
of the International Law Situations in 1928. 

The situation when a seacraf t endeavors to visit and search 
an aircraft is one involving exceptional dangers to the air- 
craft. Mere suspicion does not justify the subjection of air- 
craft to undue risk. Craft carrying mails should not be un- 
necessarily delayed. The mail carrier does not know what 
are the contents of the mail pouches and is not directly con- 
cerned with these contents. Guilt cannot be presumed. De- 
struction on ground of any act prior to the summons cannot 
easily be justified. (Naval War College Situations, 1928, pp. 

The D-20 even though it may be a state-owned 
craft, cannot be regarded by the Y-2 as a military 
plane. In these days of increasing governmental 
ownership, with governments engaged in all kinds 
of new T activities, the law still treats the vessels 
and planes owned by governments and performing 
non-military functions as private craft, e. g. The 
Habana Convention, 1928, Art. 3, op. cit.) The 
D-20 may not be shot down as a military plane. 
In conducting visit and search the Y-2 must follow 1 
the traditional rules applicable to merchant vessels. 
(Jurists' Eeport, Art. 56, Par. 3.) 

Inasmuch as the military messages, funds, and 
military materials were carried in the regular air- 
mail, the D-20 was not guilty of unneutral service. 


It was not engaged in a special voyage, nor was it 
under special charter to a belligerent state. As 
previously remarked, a craft carrying contraband 
even though caught in delicto is not liable unless 
its owners or operators could be presumed to know 
the nature of the cargo. The articles here were 
transported in the normal postal pouches, so that 
the D-20 pilot or owner presumably had no knowl- 
edge of their contents. It is doubtful whether the 
articles here can be considered as contraband any- 
way because they were probably belligerent owned 
emanating as they did from a belligerent port. In 
any case, the D-20 is guilty neither of unneutral 
service nor of carriage of contraband. The fact 
that mere carriage of the mails in regular pouches 
is not unneutral service is well explained in Spaight 
op. cit, page 392 and Oppenheim, International 
Law, 1935, Vol. II, page 699. Furthermore, the 
liability for carrying contraband and for unneu- 
tral service does not extend beyond the end of the 
voyage in which the craft was engaged in such an 
enterprise. The D-20 probably having completed 
the voyage, is no longer subject to penalty. Pos- 
sibly, if it were encountered while flying over the 
blockade line, or on a voyage on which it had 
broken the blockade, it could be seized as a block- 
ade runner, but the facts in this case scarcely 
warrant such a conclusion. 

Contraband and continuous voyage. — The issue 
raised in the case of the E-30 is obviously one of 
" continuous voyage." This is really a part of the 
subject of contraband, for " continuous voyage" 
relates to the carriage of contraband articles by an 
indirect route. In contraband there are two ele- 
ments, destination and the nature of the goods. 


There must be an enemy destination and the goods 
must be neutral owned and of a nature useful for 
war. " Continuous voyage' ' involves the destina- 
tion element in contraband, the belligerent in such 
matters claiming that the goods, though directed 
initially to neutral ports, are actually designed for 
trans-shipment or a continuation of the journey to 
belligerent hands. The doctrine first became im- 
portant when neutrals attempted to circumvent the 
British Rule of 1756, according to which commerce 
between the mother country and the colonies, closed 
in peace time to third states, could not be opened 
to neutral ships in time of war. Triangular trade, 
such as that between the West Indies, an American 
port, and France, in which American (neutral) 
ships were engaged in carrying articles indirectly 
around two legs of a journey instead of directly be- 
tween the West Indies and France, was intercepted 
and condemned by the British on the grounds that 
the trade really constituted one " continuous voy- 
age/' (The William, 1806, VI C. Robinson, 316.) 
This doctrine was transferred to contraband and 
blockade during the American Civil War and was 
greatly extended during the last war when it really 
became a doctrine of ultimate destination and of 
substitution. The British prize courts condemned 
cargoes when there was no direct evidence that the 
goods were actually going to Germany and, instead, 
employed presumptions based upon statistics and 
obscure evidence. (The Kim, L. R., 1915, p. 215; 
the Baron Stjernblad, L. R. 1918, A. C. 173; The 
Bonna, L. R. 1918, p. 123.) In the last named of 
these, the doctrine of substitution made an appear- 
ance in the court's suggestion that even though the 
cocoanut oil on board did not actually go through 


Sweden to Germany it might enable the Swedes 
to release a certain amount of margarine and butter 
from their " reservoir of fats" to Germany. 

The subject of " continuous voyage" has been 
thoroughly treated in previous Naval War College 
Situations and material in this subject will be found 
in the volumes issued in 1922 and 1926. In the 
case of the E-30 the contraband cargo has evi- 
dently been deposited, so that the aircraft is no 
longer liable, the rules and argumentation being 
the same as those discussed in Section (a) for the 

Aircraft and unneutral service. — The inter- 
national law rules in regard to unneutral service 
for merchant ships have been carried over into the 
law dealing with aircraft. This was recognized in 
Article 53, Section (c) of the Jurist's report which 
stated that "A neutral private aircraft is liable to 
capture if it * * * is engaged in unneutral 
service." Other drafts and plans for air law in 
wartime have also assumed that unneutral service 
would be a part of the air rules. Therefore, those 
acts which constitute unneutral service on the part 
of surface ships will also be unneutral service in 
the air. Maritime and air regulations will thus 
coincide, there being no reason why the different 
character of aircraft should create the necessity 
for genuinely new regulations or serious modifica- 
tions in the old. 

Art. 45. A neutral vessel is liable to be condemned and in 
a general way, is liable to the same treatment which a neu- 
tral vessel would undergo when liable to condemnation on 
account of contraband of war. 

(1) If she is making a voyage specially with a view to the 
transport of individual passengers who are embodied in the 


armed force of the enemy, or with a view to the transmission 
of information in the interest of the enemy. 

(2.) If, with the knowledge of the owner, of the one who 
charters the vessel entire, or of the master, she is transporting 
a military detachment of the enemy, or one or more persons 
who, during the voyage, lend direct assistance to the opera- 
tions of the enemy. In the cases specified in the preceding 
paragraphs (1) and (2), goods belonging to the owner of the 
vessel are likewise liable to condemnation. 

The provisions of the present Article do not apply if when 
the vessel is encountered at sea she is unaware of the opening 
of the hostilities, or if the master, after becoming aware of 
the opening of hostilities, has not been able to disembark the 
passengers. The vessel is deemed to know of the state of war 
if she left an enemy port after the opening of hostilities, or a 
neutral port after there had been made in sufficient time a 
notification of the opening of hostilities to the Power to which 
such port belongs. 

Art. 46. A neutral vessel is liable to be condemned and, in 
a general way, is liable to the same treatment which she would 
undergo if she were a merchant-vessel of the enemy : 

(1) If she takes a direct part in the hostilities. 

(2) If she is under the orders or under the control of an 
agent placed on board by the enemy Government. 

(3) If she is chartered entirely by the enemy Government. 

(4) If she is at the time and exclusively either devoted to 
the transport of enemy troops or to the transmission of infor- 
mation in the interest of the enemy. 

In the cases specified in the present Article, the goods be- 
longing to the owner of the vessel are likewise liable to 

Art. 47. Any individual embodied in the armed force of 
the enemy and who is found on board a neutral merchant- 
vessel, may be made a prisoner of war, even though there be no 
ground for the capture of the vessel. (Declaration of Lon- 
don, 1909.) 

Unneutral service has been discussed previously 
in Naval War College Situations, the 1928 volume 
dealing carefully with this subject. In the resume 


that year, page 106, is found the following 
conclusion : 

While there has been a tendency to extend the scope of un- 
neutral service, it is evident from practice, instructions, deci- 
sions, etc., that the principles of the Declaration of London 
of 1909 were generally accepted at the beginning of the World 
War in 1914. Where extreme action was taken during the 
World War on the ground of reprisals such action followed 
no precedent based on general practice. 

The essence of unneutral service, or rather 
its chief ingredient, consists in the undertaking 
specially to perform some service for a belligerent. 
By engaging in such special undertakings, the neu- 
tral ship or plane divests itself of its normal com- 
mercial character and performs a military job. 
Unneutral service is thus distinguishable from 
contraband because in the latter the neutral ship 
is engaged in commercial enterprise, while in the 
former it is participating directly in a belliger- 
ent's affairs. Where an airplane like the G-40 is 
carrying a belligerent general under a special char- 
ter it is clearly engaged in unneutral service for 
which the penalty is the seizure of the plane. If 
the general took passage on a regular commercial 
flight, and if the ship and its owners did not go out 
of their way to accommodate the general, there 
would be no liability. For a clear analysis of air 
law in regard to unneutral service see Spaight, op. 
cit., page 390 et. seq. 

Period of liability for unneutral service by air- 
craft. — In the present case of the G-40 if that 
plane has completed the round trip journey from 
the port in state G to the military headquarters of 
state X, its liability is at an end provided, as above 
indicated, the usual maritime law is made applica- 


ble in toto to the air. In regard to penalty, how- 
ever, there is some indication that for aircraft, 
liability is not discharged when the special service 
is terminated. In Article 6 of the Jurists' code 
it is stipulated that where a neutral vessel or air- 
craft transmits information to a belligerent con- 
cerning military operations, " liability to capture 
* * * is not extinguished by the conclusion of 
the voyage or flight on which the vessel or aircraft 
was engaged at the time, but shall subsist for a 
period of one year after the act complained of." 
Thus the air rules regarding penalty for unneu- 
tral service may become more stringent in the fu- 
ture. The fact that an airplane can deviate 
nowadays so easily and is relatively so mobile and 
swift that it can perform special services more 
frequently and expeditiously than can surface ves- 
sels indicates that for air law the period of liability 
will probably be longer than it has been for 
maritime law. 

Resume. — Although at the present time there are 
no binding rules of international law in regard 
to the conduct of hostilities in the air, and in re- 
gard to neutral and belligerent rights in the air, 
it is apparent that most of the conceptions and 
many of the rules of maritime law will be car- 
ried over into the rules for the air. The traditional 
rights of visit and search and of seizure on the 
grounds of contraband, blockade, and unneutral 
service will belong to belligerents in future con- 
flicts. International agreement on the application 
of these rights is desperately needed. Because of 
the difficulties involved in carrying out visit and 
search, difficulties inherent in the nature of air- 
craft, future belligerents may be tempted to dis- 


pense entirely with restraints and to shoot down 
neutral and enemy craft more or less indiscrim- 
inately. For the avoidance of such an unfortu- 
nate state of affairs, it is imperative that practical 
rules be devised. 

The technique of visit and search in the air must 
be evolved with proper regard for the nature of 
aircraft. Unlike merchant vessels, aircraft must 
deviate in order to undergo visit and search, and 
agreement must be arrived at on such matters as 
proper landing places, weather conditions, and fuel 
supplies. It is essential, too, that nations make a 
convention on the method of signalling a neutral 
plane, it being probable that the traditional shot 
"across the bow" will not be feasible, and it being 
necessary further to establish uniformity in air- 
plane radio sets, equipment for receiving, etc. 

The air may bring modifications in the customary 
laws and rules relating to contraband and block- 
ade. The high speeds of planes and the ease with 
which they can cross a line of blockade, may cause 
belligerents and neutrals to agree upon some sort of 
certificate scheme in the place of the conventional 
visit and search for contraband, and upon a "barred 
zone" in lieu of the old-time maritime blockade. 
Tentative agreements upon some of these matters, 
particularly those relating to the methods of sig- 
nalling for visit and search, should be sought im- 
mediately, though the experience of future con- 
flicts, if and when they come, will play a leading 
role in the development of the law. 

As for the penalties involved in carriage of con- 
traband, breach of blockade, and unneutral serv- 
ice, a tendency towards a greater severity is dis- 
tinctly discernible. Facilities possessed by aircraft 


for eluding capture and for making frequent 
trips, make it not unreasonable for the law to ex- 
tend the period of liability beyond that customarily 
possessed by surface vessels. Planes may not, 
therefore, expect immunity when they have de- 
posited contraband or terminated their act of 
unneutral service. 

For the present, given the absence of formulated 
rules, the solution to air problems must be sought 
to a great extent upon the basis of analogy to 
maritime law, with distinct modifications, how- 
ever, where these are called for by reason of the 
nature of aircraft. Although it has not been cus- 
tomary in international law to concede favors or 
privileges to new weapons because they possessed 
special handicaps or weaknesses, the laws of 
physics, that is, the fact that airplanes move in a 
three-dimensional realm and cannot stand still in 
the air, force modifications in the rules, not as a 
matter of special privilege, but as a matter of abso- 
lute necessity. This does not mean, therefore, that 
belligerent aircraft can claim freedom from legal 
restrictions merely because it is difficult to conform 
to formerly accepted principles. It does mean that 
the legal restraints must be adapted to the peculiar 
needs of the air. Nor may neutral craft claim spe- 
cial privileges merely because airplanes are rela* 
tively frail, and because the exercise of belligerent 
force might endanger the whole craft. An adjust- 
ment of risks and restraints can be made upon the 
basis of established principles with neutrals ac- 
cepting interference with their air commerce and 
belligerents abandoning any pretentions to ruth- 
lessness and arbitrary actions. The great bellig- 
erent-neutral compromises on visit and search, 


contraband, blockade and unneutral service may 
be continued with necessary changes occasioned by 
the nature of the medium involved. 


In each instance the Y-2 may lawfully visit and 
search the neutral aircraft. 

(a) The B-17 should be released. 

(&) If the Y-2 is a member of the blockading 
squadron and if it meets the C-12 while the latter 
is engaged on the return voyage, the C-12 should 
be seized and held for prize court adjudication. If 
the Y-2 encounters the C-12 after the latter has 
completed the round trip journey, the C-12 should 
be released. If the Y-2 is not a member of the 
blockading squadron but meets the C-12 while the 
latter is on the return trip, the C-12 may be seized 
and held for prize court adjudication. 

(c) The D-20 should be released. 

(d) The E-30 should be released. 

(e) If the G-40 is no longer under special char- 
ter, and if it has completed the journey for which 
it w 7 as hired, it should be released. 


Situation II 


There are strained relations between states M 
and N. Armed land and naval forces of state N 
enter the jurisdiction of state M without declara- 
tion of war and there claim the rights to which a 
military occupant would be entitled. In state M, 
states S and T, by virtue of treaty agreement with 
state M, have special rights in respect to exemption 
of persons and property from local jurisdiction. 
State N announces a pacific blockade of the coasts 
and ports of state M. 

(a) In its regular voyage the Safa, a freighter 
lawfully flying the flag of state S, with a cargo of 
munitions, is about to enter port O of state M 
when summoned by radio from an aircraft to lie 
to for 24 hours or until a cruiser of state N arrives 
to visit and search the Safa. The Safa asks aid 
and instructions from the Sogu, a vessel of war of 
state S which is in port. What action should the 
commander of the Sogu take ? 

(&) A commercial aircraft, the T-21, registered 
in state T, is on the following day, when entering 
port 0, ordered by the Noan, a cruiser of state N, 
to land at a nearby airport, which is in the control 
of forces of N", in order that its identity and right 
to pass may be established. The T-21 continues 
its flight toward port O and is fired upon by the 
Noan and damaged so that it is obliged to land on 



the beach near the Tafu, a cruiser of state T. The 
Noan continues to fire upon the T-21. What ac- 
tion should the commander of the Tafu take? 

(c) Under the treaty, the consul of state T has 
complete jurisdiction over nationals of state T 
at Mount, a city of state M up a river and 150 
miles from the coast. Later the Tafu anchors off 
Mount. The land and air forces of state N seize 
the city and order two nationals of state T, accused 
of a crime against citizens of state M to be turned 
over to authorities of N for trial. The consul of 
state T demands that they be turned over to him, 
and when the authorities of N demand the two na- 
tionals from state M, the consul requests the aid of 
the commander of the Tafu in obtaining and trying 
the accused. What action should the commander 
of the Tafu take? 


(a) If the airplane is still with the Safa, the 
commander of the Sogu should direct the Safa to 
lie to, should proceed to the Safa to protect it, and 
should notify the commander of the N forces that 
the Safa is a vessel of state S and is not to be 
molested, identification being all that the Safa is 
legally required to furnish the airplane. If the 
airplane has left the Safa, the Sogu should direct 
the latter to proceed into the port, and, if deemed 
essential for the protection of the Safa, the Sogu 
should accompany it into the port. 

(&) The commander of the Tafu should warn 
the Noan that if the latter continues to fire upon 
the T-21, he will fire upon the Noan to force it to 
desist. He should attempt to interpose the Tafu 
between the Noan and the airplane with the object 


of halting the firing and should send out a small 
boat to rescue the survivors of the T-21. 

(c) The commander of the Tafu should consult 
with the consul of state T at Mount and should 
report the incident to his superiors in the Navy 
Department. A demand for the return of the na- 
tionals of state T or a threat of the use of force on 
the part of the commander of the Tafu would not 
he warranted by the facts of this situation. As 
long as no immediate threat to the lives and prop- 
erty of state T nationals is involved, the matter is 
one for diplomatic negotiation between states T 
and N. 


"Strained relations." — The strained relations be- 
tween states M and N do not constitute a state of 
war. War in the legal sense depends for its exist- 
ence not merely upon the presence of an armed 
clash (the objective criterion of war) but also upon 
the intent either of one of the parties to the clash 
or upon the intent of a third party or parties (the 
subjective criterion). In the past, at least, war in 
the legal sense has been a status resulting from 
some sort of a blend of these two criteria, although 
it is to be remembered that legal war may exist 
without the use of force and that all use of force 
is not war. The anomalies of this situation have 
been so great and definition of war has become so 
elusive, that strong suggestions are being made 
either to eliminate war entirely from the vocabu- 
lary of international law, or to make war in the 
legal sense practically synonymous with the use of 
force. In the present situation, however, it is plain 
that though there is an armed clash between states 


M and N there is no war. There is no question, 
therefore, of belligerent rights or of neutral rights 
in the strict legal sense. The situation is obviously 
analogous to the Sino-Japanese conflict which 
began in 1937. 
Nature of the Sino-Japanese clash, — 

May the present extensive military operations of Japanese 
forces on Chinese soil be explained on the ground of war ? 

No declaration of war has been made by either side in the 
conflict, although the Hague Convention of 1907, to which 
China and Japan are parties, provides that hostilities should 
not commence without previous and explicit warning to the 
other party and notice to neutral Powers. The exercise of 
belligerent rights of blockade, visit, search and capture have 
not been resorted to by either side. Diplomatic relations 
have not been broken off although the heads of missions re- 
tired after the fall of Nanking. Consuls generally remain 
at their posts and commercial intercourse has continued, al- 
though naturally on a much reduced scale. On the other 
hand, extensive military operations have been in progress 
between the Japanese and Chinese armies since early July, 
1937. Something like a million troops are said to be engaged 
on both sides, and something over thirty-five warships have 
taken part in the operations. Bombardments by warships, 
heavy artillery and war planes have been extensive and de- 
structive to life and property. As early as August 25 Ad- 
miral Hasegawa declared a blockade of certain Chinese coasts 
against Chinese vessels, and Chinese vessels running the 
blockade have been captured and sunk. Provisional govern- 
ments in the nature of military governments supported by 
armed forces have been set up by Japan in the conquered 
territory. Neutrals have been warned to withdraw from 
areas of hostilities, and encroachments have been made by 
Japanese forces upon the foreign settlement areas. (L. H. 
Woolsey, American Journal of International Law, Vol. 32, 
p. 317.) 

Report of the Nine Power Brussels Confer- 
ence. — Following is the text of the report adopted 


on November 24, 1937, by the Nine Power Confer- 
ence at Brussels', Belgium : 

"The Conference at Brussels was assembled pursuant to 
an invitation extended by the Belgian Government at the 
request of His Majesty's Government in the United King- 
dom with the approval of the American Government. It 
held its opening session on November 3, 1937. The Confer- 
ence has now reached a point at which it appears desirable 
to record the essential phases of its work. 

"In the winter of 1921-22 there were signed at Washing- 
ton a group of inter related treaties and agreements of 
which the Nine Power Treaty regarding principles and 
policies to be followed in matters concerning China consti- 
tuted one of the most important units. These treaties and 
agreements were the result of careful deliberation and were 
entered into freely. They were designed primarily to bring 
about conditions of stability and security in the Pacific area. 

"The Nine Power Treaty stipulates in Article one that — 

" 'The Contracting Powers, other than China agree : 

"'(1) To respect the sovereignty, the independence, and 
the territorial and administrative integrity of China; 

"'(2) To provide the fullest and most unembarrassed 
opportunity to China to develop and maintain for herself 
an effective and stable government ; 

"'(3) To use their influence for the purpose of effectu- 
ally establishing and maintaining the principle of equal 
opportunity for the commerce and industry of all nations 
throughout the territory of China ; 

" '(4) To refrain from taking advantage of conditions in 
China in order to seek special rights or privileges which 
would abridge the rights of subjects or citizens of friendly 
States, and from countenancing action inimical to the secur- 
ity of such States.' 

"Under and in the light of these undertakings and of the 
provisions contained in the other treaties, the situation in 
the Pacific area was for a decade characterized by a sub- 
stantial measure of stability, with considerable progress 
towards the other objectives envisaged in the treaties. In 
recent years there have come a series of conflicts between 


Japan and China, and these conflicts have culminated in the 
hostilities now in progress. 

"The Conference at Brussels was called for the purpose, 
as set forth in the terms of the invitation 'of examining in 
conformity with Article seven of that treaty, the situation 
in the Far East and of studying peaceable means of hasten- 
ing an end of the regrettable conflict which prevails there.' 
With the exception of Japan, all of the signatories and ad- 
herents to the Nine Power Treaty of February 6, 1922 ac- 
cepted the invitation and sent representatives to Brussels 
for the purpose stated in the invitation. 

"The Chinese Government, attending the Conference and 
participating in its deliberations, has communicated with the 
other parties to the Nine Power Treaty in conformity with 
Article 7 of that treaty. It has stated here that its present 
military operations are purely in resistance to armed in- 
vasion of China by Japan. It has declared its willingness 
to accept a peace based upon the principles of the Nine 
Power Treaty and to collaborate wholeheartedly with the 
other powers in support of the principle of the sanctity of 

"The Japanese Government in replying with regret that 
it was not able to accept the invitation to the Conference 
affirmed that 'the action of Japan in China is a measure 
of self defense which she has been compelled to take in the 
face of China's fierce anti Japanese policy and practice and 
especially by her provocative action in resorting to force of 
arms ; and consequently it lies, as has been declared already 
by the Imperial Government, outside the purview of the 
Nine Power Treaty' ; and advanced the view that an attempt 
to seek a solution at a gathering of so many powers 'would 
only serve to complicate the situation still further and to 
put serious obstacles in the path of a just and proper 

"On November 7, 1937 the Conference sent through the 
Belgian Government to the Japanese Government a com- 
munication in the course of which the Conference inquired 
whether the Japanese Government would be willing to de- 
pute a representative or representatives to exchange views 
with representatives of a small number of powers to be 
chosen for that purpose, the exchange of views to take place 


within the framework of the Nine Power Treaty and in con- 
formity with the provisions of that treaty, toward throwing 
further light on points of difference and facilitating a settle- 
ment of the Sino- Japanese conflict. In that communication 
the representatives of the states met at Brussels, expressed 
their earnest desire that peaceful settlement be achieved. 

"To that communication the Japanese Government replied 
in a communication of November 12, 1937 stating that it 
could not do otherwise than maintain its previously ex- 
pressed point of view that the present action of Japan in 
her relations with China was a measure of self defense and 
did not come within the scope of the Nine Power Treaty; 
that only an effort between the two parties would constitute 
a means of securing the most just and the most equitable 
settlement, and that the intervention of a collective organ 
such as the Conference would merely excite public opinion 
in the two countries and make it more difficult to reach a 
solution satisfactory to all. 

"On November 15 the Conference adopted a declaration 
in the course of which it affirmed that the representatives 
of the Union of South Africa, the United States of America, 
Australia, Belgium, Bolivia, Canada, China, France, the 
United Kingdom, India, Mexico, Netherlands, New Zealand, 
Portugal, and the Union of Soviet Socialist Republics 
'* * * consider this conflict of concern in fact to all 
countries party to the Nine Power Treaty of Washington 
of 1922 and to all countries party to the Pact of Paris of 
1928 and of concern in fact to all countries members of 
the family of nations.' 

"In the presence of this difference between the views of 
the Conference and of the Japanese Government there now 
appears to be no opportunity at this time for the Confer- 
ence to carry out its terms of reference insofar as they relate 
to entering into discussions with Japan towards bringing 
about peace by agreement. The Conference therefore is 
concluding this phase of its work and at this moment of 
going into recess adopts a further declaration of its views. 

"The text of the communication sent to the Japanese 
Government on November 7, 1937 reads as follows: 

" 'The representatives of the states met in Brussels on 
November 3, last, have taken cognizance of the reply which 


the Japanese Government sent in of October 27 to the in- 
vitation of the Belgian Government, and the statement 
which accompanied this reply. 

" 'In these documents the Imperial Government states that 
it cherishes no territorial ambitions in respect of China and 
that on the contrary it sincerely desires "to assist in the 
material and moral development of the Chinese nation", 
that it also desires "to promote cultural and economic co- 
operation" with the foreign powers in China and that it 
intends furthermore scrupulously "to respect foreign rights 
and interest in that country." 

" 'The points referred to in this declaration are among the 
fundamental principles of the Treaty of Washington of 
February 6, 1922 (The Nine Power Treaty). The repre- 
sentatives of the states parties to this treaty have taken note 
of the declarations of the Imperial Government in this 

" 'The Imperial Government moreover denies that there 
can be any question of a violation of the Nine Power Treaty 
by Japan and it formulates a number of complaints against 
the Chinese Government. The Chinese Government for its 
part contends that there has been violation, denies the 
charges of the Japanese Government and, in turn, makes 
complaint against Japan. 

" 'The treaty has made provision for just such a situation. 
It should be borne in mind that the exchange of views tak- 
ing place in Brussels is based essentially on these provisions 
and constitutes "full and frank communication" as envis- 
aged in Article VII. This Conference is being held with a 
view to assisting in the resolving by peaceful means of a 
conflict btween parties to the treaty. 

" 'One of the parties to the present conflict, China, is rep- 
resented at the Conference and has affirmed its willingness 
fully to cooperate in its work. 

" 'The Conference regrets the absence of the other party, 
Japan, whose cooperation is most desirable. 

" 'The Imperial Government states that it is "firmly con- 
vinced that an attempt to seek a solution at a gathering of 
so many powers whose interests in East Asia are of varying 
degree, or who have practically no interests there at all, 
will only serve to complicate the situation still further and 


to put serious obstacles in the path of a just and proper 

" 'It should be pointed out that all of these powers which 
are parties to the treaty are, under the terms of this in- 
strument, entitled to exercise the rights which the treaty 
confers upon them ; that all powers which have interests in 
the Far East are concerned regarding the present hostilities ; 
and that the whole world is solicitous with regard to the 
effect of these hostilities on the peace and security of the 
members of the family of nations. 

" 'However, the representatives of the states met at Brus- 
sels believe that it may be possible to allay Japan's mis- 
givings referred to above; they would be glad to know 
whether the Imperial Government would be disposed to de- 
pute a representative or representatives to exchange views 
with representatives of a small number of powers to be 
chosen for that purpose. Such an exchange of views would 
take place within the framework of the Nine Power Treaty 
and in conformity with the provisions of that treaty. Its 
aims would be to throw further light on the various points 
referred to above and to facilitate a settlement of the con- 
flict. Regretting the continuation of hostilities, being 
firmly convinced that a peaceful settlement is alone capable 
of insuring a lasting and constructive solution of the pres- 
ent conflict, and having confidence in the efficacy of methods 
of conciliation, the representatives of the states met at 
Brussels earnestly desire that such a settlement may be 

" 'The states represented at the Conference would be very 
glad to know as soon as possible the attitude of the Imperial 
Government towards this proposal.' 

"The text of the declaration adopted by the Conference 
November 24, 1937 reads as follows : 

" 'The Nine Power Treaty is a conspicuous example of 
numerous international instruments by which the nations 
of the world enunciate certain principles and accept certain 
self denunciatory rules in their conduct with each other 
solemnly undertaking to respect the sovereignty of other 
nations, to refrain from seeking political or economic dom- 
ination of other nations, and to abstain from interference in 
their internal affairs. 


" 'These international instruments constitute a framework 
within which international security and international peace 
are intended to be safeguarded without resort to arms and 
within which international relationships should subsist on 
the basis of mutual trust, good will and beneficial trade and 
financial relations. 

" 'It must be recognized that whenever armed force is 
employed in disregard of these principles the whole struc- 
ture of international relations based upon the safeguards 
provided by treaties is disturbed. Nations are then com- 
pelled to seek security in ever increasing armaments. 
There is created everywhere a feeling of uncertainty and 
insecurity. The validity of these principles cannot be 
destroyed by force, their universal applicability cannot be 
denied and indispensability to civilization and progress 
cannot be gainsaid. 

" 'It was in accordance with these principles that this 
Conference was called in Brussels for the purpose, as set 
forth in the terms of the invitation issued by the Belgian 
Government "of examining in conformity with article seven 
of the Nine Power Treaty, the situation in the Far East and 
of studying peaceable means of hastening an end of the 
regrettable conflict which prevails there". 

" 'Since its opening session on November 3rd the Con- 
ference has continuously striven to promote conciliation and 
has endeavored to secure the cooperation of the Japanese 
Government in the hope of arresting hostilities and bring- 
ing about a settlement. 

" 'The Conference is convinced that force cannot provide 
just and lasting solution for disputes between nations. It 
continues to believe that it would be to the immediate and the 
ultimate interest of both parties to the present dispute to 
avail themselves of the assistance of others in an effort to 
bring hostilities to an early end as a necessary preliminary 
to the achievement of a general and lasting settlement. It 
further believes that a satisfactory settlement cannot be 
achieved by direct negotiation between the parties to the 
conflict alone and that only by consultation with other 
powers principally concerned can there be achieved an 
agreement the terms of which will be just, generally accept- 
able and likely to endure. 


" 'This Conference strongly reaffirms the principles of the 
Nine Power Treaty as being among the basic principles 
which are essential to world peace and orderly progressive 
development of national and international life. 

" 'The Conference believes that a prompt suspension of 
hostilities in the Far East would be in the best interests not 
only of China and Japan but of all nations. With each 
day's continuance of the conflict the loss in lives and prop- 
erty increases and the ultimate solution of the conflict be- 
comes more difficult. 

" 'The Conference therefore strongly urges that hostilities 
be suspended and resort be had to peaceful processes. 

" 'The Conference believes that no possible step to bring 
about by peaceful processes a just settlement of the conflict 
should be overlooked or omitted. 

" 'In order to allow time for participating governments 
to exchange views and further explore all peaceful methods 
by which a just settlement of the dispute may be attained 
consistently with the principles of the Nine Power Treaty 
and in conformity with the objectives of that treaty the 
Conference deems it advisable temporarily to suspend its 
sittings. The conflict in the Far East remains, however, a 
matter of concern to all the powers assembled at Brussels — 
by virtue of commitments in the Nine Power Treaty or of 
special interest in the Far East — and especially to those 
most immediately and directly affected by conditions and 
events in the Far East. Those of them that are parties to 
the Nine Power Treaty have expressly adopted a policy de- 
signed to stabilize conditions in the Far East and, to that 
end, are bound by the provisions of that treaty, outstanding 
among which are those of articles 1 and 7. 

" 'The Conference will be called together again whenever 
its chairman or any two of its members shall have reported 
that they consider that its deliberations can be advan- 
tageously resumed.' " 

Both China and Italy requested that statements of posi- 
tion they made should be considered as integral parts of the 
report. (Press Eeleases, Vol. XVII, No. 426.) 


Policy of the United States — General. — 

At his press conference on August 17, 1937 the Secretary 
of State announced that (1) legislative action to make avail- 
able funds for purposes of emergency relief necessitated by 
the situation in the Far East had been asked and that (2) 
this Government had given orders for a regiment of ma- 
rines to prepare to proceed to Shanghai. The Secretary 
then discussed at some length the principles of policy on 
which this Government was proceeding. 

The situation in Shanghai is in many respects unique. 
Shanghai is a great cosmopolitan center, with a population 
of over three million, a port which has been developed by 
the nationals of many countries, at which there have pre- 
vailed mutually advantageous contacts of all types and 
varieties between and among the Chinese and people of 
almost all other countries of the world. At Shanghai there 
exists a multiplicity of rights and interests which are of in- 
evitable concern to many countries, including the United 

In the present situation, the American Government is en- 
gaged in facilitating in every way possible an orderly and 
safe removal of American citizens from areas where there 
is special danger. Further, it is the policy of the American 
Government to afford its nationals appropriate protection, 
primarily against mobs or other uncontrolled elements. For 
that purpose it has for many years maintained small detach- 
ments of armed forces in China, and for that purpose it is 
sending the present small reinforcement. These armed 
forces there have no mission of aggression. It is their func- 
tion to be of assistance toward maintenance of order and 
security. It has been the desire and the intention of the 
American Government to remove these forces when per- 
formance of their function of protection is no longer called 
for. and such remains its desire and expectation. 

The issues and problems which are of concern to this 
Government in the present situation in the Pacific area go 
far beyond merely the immediate question of protection of 
the nationals and interests of the United States. The con- 
ditions which prevail in that area are intimately connected 
with and have a direct and fundamental relationship to the 


general principles of policy to which attention was called 
in the statement of July 16, which statement has evoked 
expressions of approval from more than 50 governments. 
This Government is firmly of the opinion that the principle 
summarized in that statement should effectively govern in- 
ternational relationships. 

When there unfortunately arises in any part of the world 
the threat or the existence of serious hostilities, the matter 
is of concern to all nations. Without attempting to pass 
judgment regarding the merits of the controversy, we appeal 
to the parties to refrain from resort to war. We urge that 
they settle their differences in accordance with principles 
which, in the opinion not alone of our people but of most 
peoples of the world, should govern in international rela- 
tionships. We consider applicable throughout the world, 
in the Pacific area as elsewhere, the principles set forth in 
the statement of July 16. That statement of princples is 
comprehensive and basic. It embraces the principles em- 
bodied in many treaties, including the Washington Con- 
ference treaties and the Kellogg-Briand Pact of Paris. 

From the beginning of the present controversy in the 
Far East, we have been urging upon both the Chinese and 
the Japanese Governments the importance of refraining 
from hostilities and of maintaining peace. We have been 
participating constantly in consultation with interested 
governments directed toward peaceful adjustment. This 
Government does not believe in political alliances or entan- 
glements, nor does it believe in extreme isolation. It does 
believe in international cooperation for the purpose of seek- 
ing through pacific methods the achievement of those objec- 
tives set forth in the statement of July 16. In the light of 
our well-defined attitude and policies, and within the range 
thereof, this Government is giving most solicitous attention 
to every phase of the Far Eastern situation, toward safe- 
guarding the lives or welfare of our people and making 
effective the policies — especially the policy of peace — in 
which this country believes and to which it is committed. 

This Government is endeavoring to see kept alive, 
strengthened, and revitalized, in reference to the Pacific 
area and to all the world, these fundamental principles. 
(Press Releases, Vol. XVII, No. 413.) 


Self-help and strained relations — Reprisals. — 
The use of force without war is legal but few crys- 
tallized rules exist to govern the relations of the 
combatants and the relations between these and 
third states. In theory, due to the absence of an 
organized international government with the power 
to enforce law, states have been legally justified in 
taking the law into their own hands and employing 
force for the defense of their rights. This is the 
system (or lack of system) known as Self-Help. 
According to the theory there is a well defined set 
of rights and duties belonging to the members of 
the international community ; these members, in the 
absence of international agencies, are to decide 
what their rights and duties are and are author- 
ized to apply measures of coercion in the execution 
of the law. If all states were more or less equal, 
this system might operate in line with the theory, 
but in practice, because of the vast inequalities be- 
tween the strengths of various nations, it has led 
to grave abuses, and what should have been legal 
measures of law enforcement turn out to be in fact 
means for political domination and control by the 
stronger against the weaker. The virtual collapse 
of the theory in operation is due not only to state 
inequality but also to the fact that each state has 
been its own prosecutor, judge and enforcing agent. 

The law on this subject of Self-Help is therefore 
woefully deficient. It has had to trail along after 
the practice of the great powers tidying up in hap- 
hazard fashion the actions of strong states which 
have claimed to be enforcing their legal rights and 
which have not been called to account except be- 
latedly by relatively few publicists and students. 
Judges and law interpretators for the most part 


have accepted the fact of the use of force because 
of necessity and have thus built up a certain 
amount of pragmatic law based mainly on the de 
facto use of power and not on the basis of the genu- 
ine mutual self-interest of states in general. 

Probably the most common and general term for 
these measures of Self -Help which do not involve 
war, is that of reprisal, though it is to be remem- 
bered that war itself is often justified as the ulti- 
mate reprisal. Theoretically, a reprisal is a legal 
act of redress performed by a state to obtain satis- 
faction for an injury received. Force is not justi- 
fied legally unless there has been a refusal to make 
redress after due notice. As above indicated, how- 
ever, these allegedly legal measures are usually 
highly colored by political motives and objectives, 
so that while a great state has " justified' ' a reprisal 
upon the grounds of self-help, actually the venture 
has most often been of very dubious legality, the 
law serving chiefly as a thin veneer to cover what 
in essence was an illegal act. 

Reprisals may take several forms, such as mili- 
tary occupation, naval bombardment, attacks upon 
commerce, embargo, boycott, and pacific blockade. 
The history of reprisals and an analysis of their 
employment are admirably described in Hind- 
marsh, A. E. " Force in Peace.' ' The sanctions out- 
lined in Article 16 of the League of Nations Cove- 
nant are designed to be collective reprisals, and to 
be of a legal rather than a political nature, in that 
they were to be employed by a community agency 
after a careful study. Some of these problems 
were thoroughly studied in the Naval War College 
Situations in 1932, pages 89 to 135. 

167533— 40 5 


Pacific blockade. — The United States has con- 
sistently denied the legality of interference with 
vessels of third states by a squadron applying a 
pacific blockade. As there is no war and therefore 
no belligerent rights, legally there can be no visit 
and search, but a blockading vessel has the right to 
identify ships attempting to pass the blockade. 

It may be necessary that the blockading forces approach, 
within the specific area of effective maintenance of the block- 
ade, vessels of third states, for the purpose of verification of 
their right to fly the flag. (Naval War College Situations, 
1932, p. 95.) 

Pacific blackade in the Sino- Japanese conflict. — 

More important than these subsidiary operations was 
the navy's part in hindering the replenishment from abroad 
of Chinese stocks of military equipment. A "pacific block- 
ade" — proclaimed on August 25 by the commander of the 
Japanese China fleet — for territory between the mouth of 
the Yangtze and Swatow was extended on September 5 to 
include virtually the entire Chinese coast, from the Man- 
churian border to Pakhoi in the south. Since Japan, not 
being legally at war, did not possess the right of a bel- 
ligerent to intercept shipments of contraband in neutral 
ships, the blockade was directed against Chinese vessels 
alone. While a naval spokesman at Shanghai threatened 
to preempt such cargoes if carried in non-Chinese craft. 
Tokyo declared that the "peaceful commerce" of third pow- 
ers would not be molested. This term, however, was not 
construed to cover foreign vessels specifically employed for 
the purpose of carrying war supplies to the Chinese. Ap- 
parently reluctant to challenge the doubtful legality of this 
exception, both the United States and Great Britain took 
measures to avoid incidents in the blockaded zone. British 
shipping was advised that, in the absence of a British war- 
ship, Japanese naval officers should be permitted to board 
ship and verify certificates of registry — a procedure which 
would tend to prevent use of the British flag as a ruse by 
Chinese vessels. Once foreign countries had acquiesced to 


this extent in the Japanese procedure, Tokyo authorities 
let it be known that "for the present" there would be no 
interference with any foreign shipping. This course was 
probably adopted because it was believed that the volume 
of military supplies shipped by sea to China, after these 
government warnings, would be too small to warrant the 
risk of foreign complications over their seizure. (Foreign 
Policy Keports, May 15, 1938, p. 55.) 

Following a conference with the Secretary of State and 
the Chairman of the United States Maritime Commission, 
the President today, September 14, 1937, issued the fol- 
lowing statement: 

"Merchant vessels owned by the Government of the United 
States will not hereafter, until further notice, be permitted 
to transport to China or Japan any of the arms, ammuni- 
tion, or implements of war which were listed in the Presi- 
dent's proclamation of May 1, 1937. 

"Any other merchant vessels, flying the American flag, 
which attempt to transport any of the listed articles to 
China or Japan will, until further notice, do so at their 
own risk. 

"The question of applying the Neutrality Act remains 
in statu quo, the Government policy remaining on a 24- 
hour basis." 


The conflict in the Far East has resulted in the creation 
of a danger zone along the coast of China which makes it 
dangerous for American merchant vessels to operate in the 
adjacent waters. 

The Japanese authorities have announced a blockade of 
the entire coast from Chinwangtao to Pakhoi against the 
entrance or egress of Chinese shipping. 

The Chinese authorities have announced their intention, 
in view of the blockade, to take appropriate action against 
all Japanese naval vessels along the Chinese coast and 
have requested that naval and merchant vessels of third 
powers avoid proximity to Japanese naval vessels and mili- 


tary transports and have their respective national colors 
painted on their top decks in a conspicuous manner. 

The Chinese authorities have also announced the fol- 

(a) The mouth of Min Kiang River in Fukien Province 
has been closed to navigation, and all shipping through that 
place has been suspended as of September 4. 

(b) Beginning September 9 no foreign merchant vessels 
will be permitted to navigate at night in waters between 
Bocca Tigris forts and Canton. (Press Releases, Vol. 
XVII, No. 416.) 

The international law governing reprisals — 
Four general rules. — The rules governing the con- 
duct of reprisals and the relations between the con- 
testants and third states have never been clearly 
developed, reprisals constituting an extremely 
foggy segment of international law. Out of the 
practice of reprisals both before 1914 and in these 
later days of "undeclared wars/' certain general 
rules, however, do emerge. These are shadowy, it 
is true, and their listing is not in the least meant to 
be definitive. Four, however, can be discerned: 

(1) The state engaging in reprisals is entitled to 
take those measures which are reasonably related 
to the end in view, and which do not interfere un- 
reasonably with the rights of third states in what, 
after all, is still technically a state of peace. The 
meaning of the word "reasonable" is subject to 
legal determination. The law or the judge apply- 
ing the law must take into account the fact that 
the state engaged in a reprisal partaking of the 
nature of force usually has a definite military or 
naval objective. Those acts which are connected 
with the attainment of this end must be condoned 
by third states to a certain extent ; these latter must 
be prepared to permit some interference with their 


normal peace time rights, and though they do not 
have to allow the exercise of belligerent rights, they 
must recognize some modification in the regular 
laws of peace. This principle may seem vague and 
abstract, but in concrete situations it is not too diffi- 
cult to apply, for in these it is usually not impos- 
sible to make a compromise which grants the state 
applying force sufficient latitude for the attain- 
ment of its object but which does not destroy com- 
pletely the rights of third parties. An example of 
such a compromise is to be found in pacific block- 
ade, where the vessels of third states must identify 
themselves to ships of the blockading force. This 
adjustment of the needs of the military and naval 
forces of the state engaged in reprisals with the 
rights of third states is all-important, and its 
achievement along the lines of reasonable compro- 
mise is of paramount significance in any discussion 
of this topic. 

(2) Despite the absence of formal agreement on 
this matter, there has been a distinct trend toward 
applying the laws of war to the conduct of hostili- 
ties between the parties in these non-war situations. 
The states engaged in the dispute are not bellig-^ 
erents but they have come to be regarded as being 
to some extent under the laws of belligerency. 
Where third states are concerned this means that 
the usual war-time doctrine of " military neces- 
sity" will be the criterion for the responsibility for 
damages committed by either contestant. In the 
Sino-Japanese conflict, for instance, it has been 
interesting to note how third powers, though not 
admitting the existence of war, have yet attempted 
to hold both Japan and China responsible for 
injuries as if there were a war. Foreigners' loss 


of life and property have brought a demand for 
reparation whenever such loss has seemed uncon- 
nected with " military necessity." 

(3) Contestants in a non-war use of force must 
therefore pay damages on a war basis, a rule 
obviously and immediately related to the one pre- 
ceding. Sometimes in the past, damages have not 
been paid, as in the case of the bombardment of 
Greytown in 1854 (4 Court of Claims Report 543, 
Perrin v. the United States), but the failure of the 
United States in this instance does not constitute 
a precedent, for in many other cases payment has 
been made for damages which were not the result 
of the acutal needs of "warfare." In his article, 
"Responsibility for Damages to Persons and Pro p- 
erty of Aliens in Undeclared War" (Proceedings 
of the American Society of International Law, 
1938, pp. 127 to 140), Professor Clyde Engleton 
makes a thoroughgoing survey of the precedents on 
this point. 

(4) Because there is no war in the legal sense, 
there is no neutrality during a period of reprisals. 
Third states accept inconvenience and interference, 
but they are not called upon to enforce neutral 
obligations, nor must they concede the full exercise 
of belligerent rights. 

This enumeration of alleged rules may not really 
be law at all because the status of reprisals is basi- 
cally so anomalous. On the one hand, there is 
legally peace and on the other, there is the employ- 
ment of force which brings many war-like elements 
into the troubled picture. That the result legally 
is considerable confusion is not surprising, but a 
semblance of order may be maintained if reason- 
able compromises are made on the basis of the fore- 


going outline. A stronger international law of 
peace and a better organized world of states would 
not tolerate such a hazy assemblage of alleged prin- 
ciples based upon a part-peace, part-war founda- 
tion, but for the present all that can be done is to 
salvage something in the way of order out of this 
unsatisfactory situation. 

As above suggested, third parties have attempted 
to hold both Japan and China to the laws of war 
during the Far Eastern conflict. Both these pow- 
ers seem to have admitted responsibility under the 
laws of war and have paid damages accordingly. 
The most notable instance of this is the case of the 
Panay, the full story of which is printed in the ap- 
pendix to this volume. The Japanese paid the 
United States $2,214,007.36 for the sinking of the 
Panay (Press Releases, Vol. XVIII, No. 443, p. 
410), while the Chinese Government paid the 
United States $264,887.47 as indemnification for 
personal injuries sustained as a result of the bomb- 
ing of the S. S. President Hoover on August 30, 
1937. (Press Releases, Vol. XIX, No. 468, p. 190.) 

American attitude toward Japanese conduct of 
hostilities. — Since the renewal of the fighting be- 
tween China and Japan in the Summer of 1937, 
the American Government, though never conceding 
that a formal war was in progress, has endeavored 
to call Japan to account as if the laws of war actu- 
ally governed the situation. The American notes 
insist that the principles of the law of war are op- 
erative, e. g. in regard to bombing, and that dam- 
age or destruction are permissible only when "The 
objectives of Japanese military operations are lim- 
ited strictly to Chinese military agencies and estab- 


lishments." (See the next to the last paragraph of 
the American note printed immediately below.) 


Upon instructions of the Secretary of State, the American 
Ambassador at Tokyo, Mr. Joseph C. Grew, delivered a note 
to the Minister for Foreign Affairs at Tokyo, September 22, 
1937. The note read textually as follows : 

"The American Government refers to the statement by the 
commander in chief of the Japanese Third Fleet which was 
handed to the American consul General at Shanghai on Sep- 
tember 19 announcing the project of the Japanese Naval Air 
Force, after 12 o'clock noon of September 21, 1937, to resort to 
bombing and other measures of offense in and around the city 
of Nanking and warning the officials and nationals of third 
powers living there 'to take adequate measures for voluntary 
moving into areas of greater safety.' 

"The American Government objects both to such jeopardiz- 
ing of the lives of its nationals and of noncombatants gen- 
erally and to the suggestion that its officials and nationals 
now residing in and around Nanking should withdraw from 
the areas in which they are lawfully carrying on their legiti- 
mate activities. 

"Immediately upon being informed of the announcement 
under reference, the American Government gave instruction 
to the American Ambassador at Tokyo to express to the Jap- 
anese Government this Government's concern; and that in- 
struction was carried out. On the same day the concern of 
this Government was expressed by the Acting Secretary of 
State to the Japanese Ambassador in Washington. 

"This Government holds the view that any general bomb- 
ing of an extensive area wherein there resides a large popu- 
lace engaged in peaceful pursuits is unwarranted and con- 
trary to principles of law and of humanity. Moreover, in 
the present instance the period allowed for withdrawal is 
inadequate, and, in view of the wide area over which Japa- 
nese bombing operations have prevailed, there can be no 
assurance that even in areas to which American nationals 
and noncombatants might withdraw they would be secure. 

"Notwithstanding the reiterated assurance that 'the 
safety of the lives and property of nationals of friendly 


powers will be taken into full consideration during the 
projected offensive,' this Government is constrained to ob- 
serve that experience has shown that, when and where aerial 
bombing operations are engaged in, no amount of solicitude 
on the part of the authorities responsible therefor is effective 
toward insuring the safety of any persons or any property 
within the area of such operations. 

"Reports of bombing operations by Japanese planes at 
and around Nanking both before and since the issuance of 
the announcement under reference indicate that these opera- 
tions almost invariably result in extensive destruction of 
noncombatant life and nonmilitary establishments. 

"In view of the fact that Nanking is the seat of govern- 
ment in China and that there the American Ambassador 
and other agencies of the American Government carry on 
their essential functions, the American Government strongly 
objects to the creation of a situation in consequence of which 
the American Ambassador and other agencies of this Gov- 
ernment are confronted with the alternative of abandoning 
their establishments or being exposed to grave hazards. 

"In the light of the assurances repeatedly given by the 
Japanese Government that the objectives of Japanese mili- 
tary operations are limited strictly to Chinese military 
agencies and establishments and that the Japanese Govern- 
ment has no intention of making nonmilitary property and 
noncombatants the direct objects of attack, and of the Japa- 
nese Government's expression of its desire to respect the 
Embassies, warships, and merchant vessels of the powers at 
Nanking, the American Government cannot believe that the 
intimation that the whole Nanking area may be subjected 
to bombing operations represents the considered intent of 
the Japanese Government. 

"The American Government, therefore, reserving all 
rights on its own behalf and on behalf of American Na- 
tionals in respect to damages which might result from Japa- 
nese military operations in the Nanking area, expresses the 
earnest hope that further bombing in and around the city 
of Nanking will be avioded." (Press Releases, Vol. XVII, 
No. 417.) 


American property in areas of hostility. — 

"I am instructed by my Government to bring to Your Ex- 
cellency's attention reports and complaints from American 
residents that in the course of recent military operations at 
Nanking, Hangshow and other places the Japanese armed 
forces have repeatedly entered American property illegally 
and removed goods and employees and committed other acts 
of depredation against American property which has almost 
invariably been marked by American flags and by notices in 
English, Chinese and Japanese issued by the American au- 
thorities and setting forth the American character of the 
property concerned. According to these reports not only 
have Japanese soldiers manifested a complete disregard for 
these notices but they have also in numerous instances torn 
down, burned and otherwise mutilated American flags. I 
am directed to impress upon Your Excellency the serious- 
ness with which my Government regards such acts and to 
convey its most emphatic protest against them. My Govern- 
ment finds it impossible to reconcile the flagrant disregard 
of American rights shown by Japanese troops as above de- 
scribed with the assurances contained in Your Excellency's 
note of December 24, 1937, that 'rigid orders have been 
issued to the military, naval and Foreign Office authorities 
to pay * * * greater attention than hitherto to observ- 
ance of the instructions that have been repeatedly given 
against infringement of, or unwarranted interference with, 
the rights and interests of the United States and other 
third powers.' 

"In view of the fact that a number of these acts are re- 
ported as having occurred subsequent to the receipt of the 
aforementioned assurances of the Imperial Japanese Gov- 
ernment and inasmuch as this disregard of American rights 
is reported as still continuing, the American Government is 
constrained to observe that the steps which the Japanese 
Government have so far taken seem inadequate to ensure 
that hereafter American nationals, interests and property 
in China shall not be subjected to attack by Japanese armed 
forces or unlawful interference by any Japanese authorities 
or forces whatsoever. My Government must, therefore, re- 
quest that the Imperial Japanese Government reenforce the 


instructions which have already been issued in such a way 
as will serve effectively to prevent the repetition of such 

(Note presented by Ambassador Joseph C. Grew to the 
Japanese Minister of Foreign Affairs, January 17, 1938, 
Press Keleases, Vol. XVIII, No. 435.) 

American property occupied by Japanese. — 

The American Ambassador to Japan, Mr. Joseph C. 
Grew, on May 31, 1938, addressed to the Japanese Minister 
for Foreign Affairs, under instruction from the Secretary 
of State, a note reading as follows: 

"The problem of enabling American citizens in China to 
reenter and repossess their properties, from which they have 
been excluded by the Japanese military and of which the 
Japanese military have been and in some cases still are in 
occupation, is giving the Government of the United States 
increasing concern. 

"An illustrative case is that of the property of the Uni- 
versity of Shanghai, a large and valuable plant located at 
Shanghai in the Yangtzepoo district. This university has 
been engaged for many years in educational work and is 
jointly owned by the Northern and Southern Baptist Mis- 
sionary Societies. The premises of the university have been 
under continuous occupation by Japanese military and naval 
units since shortly after the outbreak of hostilities at Shang- 
hai in August 1937. It is understood that the premises have 
been used by the Japanese for quartering troops and for 
military offices, and a portion of the campus for stationing 
airplanes and supplementing the runway for airplanes on 
the adjacent golf course which has been converted by the 
Japanese into a military flying field. During the period 
of Japanese occupancy several buildings have been damaged 
and the majority looted. Japanese occupation of the prop- 
erty has continued for a period of nine months, notwith- 
standing the fact that hostilities in this locality long ago 
ceased. Repeated written and oral representations made by 
the American Embassy at Tokyo to the Japanese Govern- 
ment and by the American Consul General at Shanghai to 


the Japanese authorities there have not so far resulted in 
bringing about restoration of the premises to the rightful 
owners. Recently, representatives of the Baptist missionary 
societies have stressed, on behalf of the six million Baptists 
in the United States, the urgent need for the return to 
their possession of this important missionary educational 

"In various places in the lower Yangtze Valley American 
businessmen and missionaries have been prevented by the 
Japanese authorities from returning to their places of busi- 
ness and mission stations and are denied even casual access 
to their properties. The American Consul General at 
Shanghai has made applications for passes in behalf of 
several American firms with important interests in that area 
in order to permit the representatives and employees of the 
firms to resume business there, but such applications have 
repeatedly been refused by the Japanese authorities on the 
ground that peace and order have not been sufficiently re- 
stored. This has been the case even when the applications 
were for visits for the purpose of brief inspection and check- 
ing of losses or for the purpose of taking steps to prevent 
further deterioration of their properties, including stocks 
and equipment, during their enforced absence. Many Jap- 
anese merchants and their families are known to be in the 
localities to which these Americans seek to return. 

"American missionaries also have been prevented from re- 
turning to their stations in the lower Yangtze Valley. Cer- 
tain mission properties in this region which were formerly 
under occupation by Japanese troops are now reported to 
have been vacated as a result of Japanese troop transfers, 
and the missionary societies concerned feel it highly impor- 
tant that their representatives reoccupy and preserve such 
properties. In view of the fact that Japanese civilians are 
freely permitted to go into and reside in such areas — as, 
for example, at Nanking where some eight hundred Japa- 
nese nationals, including a substantial number of women 
and children, are reported to be in residence — it is difficult 
to perceive any warrant for the continued placing by the 
Japanese authorities of obstacles in the way of return by 
Americans who have legitimate reason for proceeding to the 
areas in question. 


"My Government is confident that the Japanese Govern- 
ment cannot but concede that the infringement of and inter- 
ference with American rights in China by the Japanese au- 
thorities involved in the situation to which attention is 
herein brought are contrary to the repeated assurances of the 
Japanese Government that the American rights will be 
respected ; that the Japanese Government will take immedi- 
ate steps, in keeping with such assurances, to cause the 
return to their rightful owners of the premises of the Uni- 
versity of Shanghai and other American property under 
the occupation of Japanese armed forces; and that the 
Japanese Government will issue instructions to have re- 
moved the obstacles interposed by the Japanese authorities 
in China against return by American nationals to places such 
as those mentioned in the areas under Japanese military 
occupation." (Press Eeleases, Vol. XVIII, No. 453.) 

Airplanes and pacific blockade. — To date, there 
has not been a pacific blockade in which airplanes 
were employed, so that there are no precedents 
strictly applicable to the situation of the Safa in 
section (a) of this Situation. Applying the prin- 
ciples of maritime blockade, it would seem legal 
for the aircraft of state N to ask the Safa for 
identification. To do that would not be violating 
the peace-time rights of state S which could legally 
object to any further step amounting to visit and 
search. If the Safa refuses to comply with the 
request for identification, may the airplane use 
force ? The treatises and precedents on this prob- 
lem are exceedingly vague. In the view of the 
third party i. e. state S, any employment of force, 
even to secure identification, might seem to con- 
stitute an unwarrantable interference with its 
peaceful rights. But the objective of the block- 
ading state must be kept in mind, and if unidenti- 
fied vessels were allowed to pass the blockade, the 
entire measure of coercion might be placed in 


jeopardy. It would be asking too much of the 
blockading state to forego measures of coercion 
against the ships of third states in all cases where 
identification could not be obtained. It does not 
seem unreasonable, therefore, to permit the appli- 
cation of force for the limited purpose of securing 
identity. To support this assertion there is the 
statement in Soule and McCauley, " International 
Law" page 50, "That States not Parties to the Pa- 
cific Blockade * * * cannot complain because 
they are required to establish their identity in the 
ordinary manner." In the Naval War College 
Situations, 1932, page 95, it is also asserted that 
"The blockading force may take such measures as 
are necessary for closing the port before which it 
is maintaining an effective blockade." This last 
statement is extremely broad, is liable to misin- 
terpretation, and should not be taken as implying 
any rights over third party ships other than that 
of identification. 

In Situation (a), therefore, the aircraft has no 
authority to order the freighter about if it has ob- 
tained identity. The command to lie to for 24 hours 
or until a cruiser of state N arrives to visit and 
search the Safa, is absolutely unjustified. Even 
were this a war-time situation, such tactics by an 
airplane encountering a surface vessel would ap- 
pear to be illegal, as the discussion of Article 49 in 
the Jurists Report indicates. 

What are the rights of a surface blockading 
squadron as against aircraft flying over a pacific 
blockade % Much the same type of reasoning is ap- 
plicable here as that discussed immediately above. 
The Noan, the cruiser of state N", having the right to 
identify craft, acted legally in ordering the T-21 to 


land at a nearby airport in order that its identity 
and right to pass might be established. This in- 
volves deviation on the part of the airplane, but 
such deviation of aircraft is essential as discussed 
in Situation I. It is not lawful for an airplane to 
force a surface vessel to deviate, at least not yet, but 
an aircraft or surface vessel meeting an aircraft 
might well have to order deviation in order to effect 
its lawful purpose. To the possible objection that 
a blockade of the air maintained solely by surface 
ships could not constitute an effective blockade, it 
can be answered that surface vessels by their anti- 
aircraft guns are capable of making passage over- 
head extremely dangerous. Such a situation was 
definitely envisaged in Article 30 of the Jurists Re- 
port. In this case the fact that the Noan hit the 
T-21 proves the effectiveness of the blockade in fact. 
For state N to allow the flight of unidentified air- 
planes over its blockade might well prove ex- 
tremely risky and to ask a vessel of state N to 
withhold fire in such cases would not make sense. 
The order of the Noan to the T-21 was not unrea- 
sonable. Airplanes are difficult to identify in the 
air, and military and commercial craft nowadays 
look very much alike. As the landing field was 
nearby, no great inconvenience w 7 as being asked 
of the T-21 which should have complied with the 
order. To the possible claim that the situation 
was not sufficiently serious to warrant the firing 
upon a plane which in all likelihood would be 
seriously damaged if hit, the answer is the same 
as that given in Situation I. The pilot of the plane 
took his chances and must suffer the consequences. 
As was stated in the case of United States v. 
Diekelman (92 IT. S. 520), "She voluntarily as- 


sumed the risks of her hazardous enterprise and 
must sustain the losses that follow * * * 
(She) ought to have known they kept the port 
closed to the extent necessary for the vigorous 
prosecution (of the war)." Therefore, assuming 
that the Noan was really unaware of the T-21's 
identity, and assuming further that a proper com- 
munications code was in effect (problem discussed 
in Situation I) so that the T-21 could reasonably 
be presumed to be aware of the summons, the 
initial firing by the Noan was lawful. This de- 
cision is based upon the previously mentioned prin- 
ciple that the blockading state may make reason- 
able interference with the rights of third parties 
for the attainment of its objective, the term " rea- 
sonable" being capable of interpretation in the 
light of the facts of an actual situation. 

The firing upon the T-21 after it had been forced 
to land, was not justified. It was an excessive use 
of force which w r as not necessary for military pur- 
poses, and the Tafu should take energetic steps to 
protect the T-21 from further damage. The right 
of self-preservation is here brought into play. 

Article 723 of U. S. Navy Regulations, 1920.— -The use of 
force against a foreign and friendly state, or against anyone 
within the territories thereof, is illegal. 

The right of self-preservation, however, is a right which 
belongs to states as well as to individuals, and in the case of 
states it includes the protection of the state, its honor, and its 
possessions, and the lives and property of its citizens against 
arbitrary violence, actual or impending, whereby the state or 
its citizens may suffer irreparable injury. The conditions 
calling for the application of the right of self-preservation 
cannot be defined beforehand, but must be left to the sound 
judgment of responsible officers, who are to perform their 
duties in this respect with all possible care and forbearance. 


In no case shall force be exercised in time of peace otherwise 
than as an application of the right of self-preservation as 
above defined. 

It must be used only as a last resort, and then only to the 
extent which is absolutely necessary to accomplish the end 
required. It can never be exercised with a view to inflicting 
punishment for acts already committed. 

General principle involved. — It cannot be re- 
peated too often that in non-war situations of force 
both the contestants and third states must base 
their actions upon the compromise principle of 
" reasonable interference/ ' The application of 
this principle makes for the avoidance of contro- 
versy in a realm where specific rules are almost 
wholly absent. Though the laymen may feel that 
the bringing in of the word " reasonable" adds 
little clarity, students of the law know that courts 
and judges constantly have to deal with such mat- 
ters as " reasonable risk" and " reasonable man." 
These words acquire definite meaning when em- 
ployed in actual situations. They are legal terms 
judicially interpreted. In International Situa- 
tions like those here under discussion, sensible men 
do not and will not find it unduly difficult to de- 
cide what is "reasonable" when the legitimate 
needs of the state engaging in force meets the 
equally legitimate right of a third state under the 
international law of peace. The principle may 
again be summarized, this time in the words of 
Professor Ellery C. Stowell (International Law, 
p. 555). 

Quasi-neutrals must tolerate such modifications of the usual 
relations as are reasonably necessary to apply the justifiable 
measures of reprisal and to effect the legitimate purpose in 

167533—40 6 


Nonmilitary occupation an d extraterritorial- 
ity. — In the past there have been many occupations 
of territory when no war has been declared. In 
occupations of this sort the usual rules regulating 
a military occupant's conduct have been held to 
apply. Though occupation, either "pacific" or 
military is more than invasion and gives to the 
occupant certain rights including that of securing 
the obedience of the local population, it does not 
operate to transfer title to the land involved, or to 
terminate treaties. (See Note by Lester Woolsey, 
American Journal of International Law, April 
1938, p. 319.) 

American attitude toward Japanese occupation 
of China. — Following is the text of a letter from 
the Secretary of State to Senator William H. 

Smathers : 

December 18, 1937. 

My dear Senator Smathers : I have received your letter 
of December 13, 1937, in which you inform me that you 
favor the withdrawal of American ships and citizens from 
the area affected by the present conflict in the Far East. 

The question of the types and degrees of protection which 
this Government should afford to its citizens abroad pre- 
sents many difficulties and is one in regard to which opinions 
may very readily differ. In a situation such as has prevailed 
in the Far East there have been developed during more than 
a century certain rights, certain interests, certain obligations 
and certain practices. In the light of peculiar features in- 
herent in the situation, all of the major powers have devel- 
oped and employed, with authorization by the Chinese Gov- 
ernment, methods for safeguarding the lives and interests 
and property of their nationals believed to be appropriate 
to the situation and warranted by the peculiarities thereof. 
Thus, for instance, there came about and there is still in 
existence the system of extraterritorial jurisdiction and vari- 
ous of its concomitants. Concurrently, many nationals of 
this and other countries have, during several generations, 


gone to China, established themselves there in various occu- 
pations and activities, and subjected themselves both to the 
advantages and to the disadvantages of the conditions pre- 
vailing there, and the American Government has, along with 
other governments, accepted various rights and incurred var- 
ious obligations. In a situation such as now prevails, many 
of our nationals cannot suddenly disavow or cut themselves 
off from the past nor can the American Government suddenly 
disavow its obligations and responsibilities. The American 
naval vessels and the small contingents of American landed 
forces which have been maintained in China were placed 
and have been kept there solely for the purpose of assisting 
in the maintenance of order and security as affecting the 
lives, the property and the legitimate activities of American 
nationals, especially in regard to conditions of local disorder 
and unauthorized violence. These vessels and troops have 
never had in any sense any mission of aggression. It has 
long been the desire and expectation of the American Gov- 
ernment that they shall be withdrawn when their appropri- 
ate function is no longer called for. We had thought a few 
months ago that the opportune moment for such a with- 
drawal was near at hand. The present, however, does not 
seem an opportune moment for effecting that withdrawal. 

Officers of the American Government have repeatedly 
and earnestly advised American citizens, in face of dangers 
incident to residence in China, to withdraw and are making 
every effort to provide safe means whereby they may de- 
part. During the current situation in China the American 
military and naval forces have rendered important service 
in protecting the lives of American nationals, in assisting in 
evacuating Americans from areas of special danger, and in 
making possible the maintenance of uninterrupted communi- 
cations with our nationals and our diplomatic and consular 
establishments in the areas involved. 

As of possible interest in this connection there is enclosed 
a press release issued by the Department on August 23, 
1937, outlining the policy on which the Government is pro- 
ceeding with reference to the situation in the Far East. 

I am very grateful for your courtesy in bringing to my 
attention your views in regard to the situation in the Far 


East, and I assure you that we welcome at all times 
thoughtful views and comment on any phase of our foreign 

Sincerely yours, 

Cordell Hull. 
(Press Releases, Vol. XVII, No. 430.) 

At various times during recent decades various powers, 
among which have been Japan and the United States, have 
had occasion to communicate and to confer with regard to 
situations and problems in the Far East. In the conducting 
of correspondence and of conferences relating to these mat- 
ters, the parties involved have invariably taken into con- 
sideration past and present facts and they have not failed 
to perceive the possibility and the desirability of changes in 
the situation. In the making of treaties they have drawn 
up and have agreed upon provisions intended to facilitate 
advantageous developments and at the same time to obviate 
and avert the arising of friction between and among the 
various powers which, having interests in the region or 
regions under reference, were and would be concerned. 

In the light of these facts, and with reference especially to 
the purpose and the character of the treaty provisions from 
time to time solemnly agreed upon for the very definite pur- 
poses indicated, the Government of the United States de- 
preciates the fact that one of the parties to these agreements 
has chosen to embark — as indicated both by action of its 
agents and by official statements of its authorities — upon 
a course directed toward the arbitrary creation by that 
power by methods of its own selection, regardless of treaty 
pledges and the established rights of other powers concerned, 
of a "new order" in the Far East. Whatever may be the 
changes which have taken place in the situation in the Far 
East and whatever may be the situation now, these matters 
are of no less interest and concern to the American Govern- 
ment than have been the situations which have prevailed 
there in the past, and such changes as may henceforth take 
place there, changes which may enter into the producing 
of a "new situation" and a "new order," are and will be 
of like concern to this Government. This Government is 


well aware that the situation has changed. This Govern- 
ment is also well aware that many of the changes have been 
brought about by action of Japan. This Government does 
not admit, however, that there is need or warrant for any 
one power to take upon itself to prescribe what shall be 
the terms and conditions of a "new order" in areas not 
under its sovereignty and to constitute itself the repository 
of authority and the agent of destiny in regard thereto. 

It is known to all the world that various of the parties to 
treaties concluded for the purpose of regulating contacts 
in the Far East and avoiding friction therein and there- 
from — which treaties contained, for those purposes, various 
restrictive provisions — have from time to time and by pro- 
cesses of negotiation and agreement contributed, in the light 
of changed situations, toward the removal of restrictions 
and toward the bringing about of further developments 
which would warrant, in the light of further changes in the 
situation, further removals of restrictions. By such methods 
and processes, early restrictions upon the tariff autonomy of 
all countries in the Far East were removed. By such meth- 
ods and processes, the rights of extraterritorial juris- 
diction once enjoyed by occidental countries in relations with 
countries in the Far East have been given up in relations 
with all of those countries except China; and in the years 
immediately preceding and including the year 1931, coun- 
tries which still possess those rights in China, including the 
United States, were actively engaged in negotiations — far 
advanced — looking toward surrender of those rights. All 
discerning and impartial observers have realized that the 
United States and other of the "treaty powers" have not 
during recent decades clung tenaciously to their so-called 
"special" rights and privileges in countries of the Far East 
but on the contrary have steadily encouraged the develop- 
ment in those countries of institutions and practices in the 
presence of which such rights and privileges may safely 
and readily be given up; and all observers have seen those 
rights and privileges gradually being surrendered volun- 
tarily, through agreement, by the powers which have pos- 
sessed them. On one point only has the Government of the 
United States, along with several other governments, in- 
sisted : namely, that new situations must have developed to a 


point warranting the removal of "special"' safeguarding 
restrictions and that the removals be effected by orderly 

The Government of the United States has at all times re- 
garded agreements as susceptible of alteration, but it has 
always insisted that alterations can rightfully be made only 
by orderly processes of negotiation and agreement among 
the parties thereto. 

The Japanese Government has upon numerous occasions 
expressed itself as holding similar views. 

The United States has in its international relations rights 
and obligations which derive from international law and 
rights and obligations which rest upon treaty provisions. 
Of those which rest on treaty provisions, its rights and 
obligations in and with regard to China rest in part upon 
provisions in treaties between the United States and China, 
and in part upon provisions in treaties between the United 
States and several other powers, including both China and 
Japan. These treaties were concluded in good faith for the 
purpose of safeguarding and promoting the interests not of 
one only but of all of their signatories. The people and the 
Government of the United States cannot assent to the abro- 
gation of any of this country's rights or obligations by the 
arbitrary action of agents or authorities of any other 

The Government of the United States has, however, al- 
ways been prepared, and is now, to give due and ample 
consideration to any proposals based on justice and reason 
which envisage the resolving of problems in a manner duly 
considerate of the rights and obligations of all parties di- 
rectly concerned by processes of free negotiation and new 
commitment by and among all of the parties so concerned. 
There has been and there continues to be opportunity for 
the Japanese Government to put forward such proposals. 
This Government has been and it continues to be willing to 
discuss such proposals, if and when put forward, with rep- 
resentatives of the other powers, including Japan and China, 
whose rights and interests are involved, at whatever time 
and in whatever place may be commonly agreed upon. 


Meanwhile, this Government reserves all rights of the 
United States as they exist and does not give assent to any 
impairment of any of those rights. 

Joseph C. Grew. 

(Note to the Japanese Minister for Foreign Affairs, De- 
cember 31, 1938. Press Eeleases, Vol. XIX, No. 483.) 

I desire also to call Your Excellency's attention to the 
fact that unwarranted restrictions placed by the Japanese 
military authorities upon American nationals in China — 
notwithstanding the existence of American treaty rights in 
China and the repeated assurances of the Japanese Govern- 
ment that steps had been taken which would insure that 
American nationals, interests, and properties would not be 
subject to unlawful interference by Japanese authorities — 
further subject American interests to continuing serious 
inconvenience and hardship. Reference is made especially 
to the restrictions placed by the Japanese military upon 
American nationals who desire to reenter and reocccupy 
properties from which they have been driven by the hostili- 
ties and of which the Japanese military have been or still are 
in occupation. Mention may also be made of the Japanese 
censorship of and interference with American mail and tele- 
grams at Shanghai, and of restrictions upon freedom of 
trade, residence and travel by Americans, including the use 
of railways, shipping, and other facilities. While Japanese 
merchant vessels are carrying Japanese merchandise between 
Shanghai and Nanking, those vessels decline to carry mer- 
chandise of other countries, and American and other non- 
Japanese shipping is excluded from the lower Yangtze on 
the grounds of military necessity. Applications by Ameri- 
can nationals for passes which would allow them to return 
to certain areas in the lower Yangtze Valley have been 
denied by the Japanese authorities on the ground that peace 
and order have not been sufficiently restored, although many 
Japanese merchants and their families are known to be in 
those areas. 

(From the American Note to Japan, October 6, 1938. 
Press Releases, Vol. XIX, No. 474, p. 285.) 


"Four. Concerning the return of American citizens to the 
occupied areas. Your Excellency is aware that in North 
China there is no restriction, excepting in very special cases 
where the personal safety of those who return would be 
endangered, while in the Yangtze Valley large numbers of 
Americans have already returned. The reason why permis- 
sion to return has not yet been made general is, as has been 
repeatedly communicated to Your Excellency, due to the 
danger that persists because of the imperfect restoration of 
order and also to the impossibility of admitting nationals 
of third powers on account of strategic necessities such as 
the preservation of military secrets. Again, the various 
restrictions enforced in the occupied areas concerning thei 
residence, travel, enterprise and trade of American citizens, 
constitute the minimum regulations possible consistent with 
military necessities and the local conditions of peace and 
order. It is the intention of the Japanese Government to 
restore the situation to normal as soon as circumstances 

"Five. The Japanese Government were surprised at the 
allegation that there exists a fundamental difference between 
the treatment accorded to Japanese in America and the 
treatment accorded to Americans in Japan. While it is 
true that in these days of emergency Americans residing in 
this country are subject to various economic restrictions, yet 
these are, needless to say, restrictions imposed not upon 
Americans alone but also on all foreigners of all nationalities 
as well as upon the subjects of Japan. I beg to reserve for 
another occasion a statement of the views of the Japanese 
Government concerning the treatment of Japanese subjects 
in American territory, referred to in Your Excellency's note. 

"As has been explained above, the Japanese Government, 
with every intention of fully respecting American rights 
and interests in China, have been doing all that could pos- 
sibly be done in that behalf. However, since there are in 
progress at present in China military operations on a scale 
unprecedented in our history, it may well be recognized by 
the Government of the United States that it is unavoidable 
that these military operations should occasionally present 
obstacles to giving full effect to our intention of respecting 
the rights and interests of American citizens.*' 


(From the Japanese reply, November 18, 1938, to the 
preceding note. Press Releases, Vol. XIX, No. 477, p. 352.) 

Rales of "pacific" occupation. — As with meas- 
ures of force short of war in general, very few 
specific regulations exist concerning " pacific" oc- 
cupation, but certain lines of conduct emerge from 
an analysis of past measures of this sort : 

(1) The coerced state retains title to the terri- 
tory occupied and no legal change in sovereignty 
occurs without a definite treaty or without the 
workings of the principle of prescription. 

(2) The occupant in his jurisdiction is limited 
to the right of garrison and of securing the safety 
of his troops on the territory occupied. This is 
fairly extensive jurisdiction, however, for natu- 
rally the occupying authorities in looking after 
the security of their troops will have to assume a 
large measure of control. 

The problem, then, is to balance the interests 
involved, those of the occupant against those of 
third states and of the occupied state. As with 
military occupation, the local rules should continue 
in force "as far as possible," that is, as far as the 
safety of the military forces allows. This state of 
affairs is prescribed by Article 48 of Hague Con- 
vention IV, of 1907, Respecting the Laws and Cus- 
toms of War on Land, and in Article VI of the 
Instructions for the Government of Armies of the 
United States in the Field (1863), which reads: 

All civil and penal law shall continue to take its course 
* * * under martial law * * * unless * * * 
stopped by order of the occupying military power. 

In an occupied area there are thus two parallel 
legal systems. The occupant applies his own law 
in all cases of crime committed by his own officers 


and men, in all cases of crimes against the army 
of occupation by any one in the area, and in all 
cases of war crimes involving illegal attempts to 
interrupt lines of communication, to demolish 
bridges, to obstruct traffic, etc. The primordial 
right of self -protection gives the occupant this nec- 
essary jurisdiction. In an exhaustive treatise, 
"Des Occupations Militaires en dehors Occupa- 
tions de Guerre" (Paris, 1913) by Raymond Robin, 
will be found a complete survey of the problems 
involved in " pacific" occupation. 

(3) When the two jurisdictions come into colli- 
sion, that of the occupant necessarily has priority. 
This conclusion is based upon the practice followed 
in the pre-war instances of occupation. In many 
of these, the occupying power clashed with the 
rights of third states established in extraterritori- 
ality conventions. The occupant in each instance 
gave consideration to the stipulations of these 
treaties, but at certain times felt obliged because of 
military requirements to override the treaty rights. 
The occupation in itself, it should be remembered, 
did not abrogate these treaties which remained in 
force until arranged for by further negotiation. 

Occupation and extraterritoriality — Prece- 
dents. — The French in Morocco in 1907 declared 
"the fact of occupation cannot modify in any man- 
ner the rules of procedure established by 
treaty, * * * at least in regard to infractions 
which do not directly concern the security of the 
occupying troops." (Robin op. cit., p. 546.) The 
famous Casablanca arbitration of 1909 involved a 
conflict between French troops and the German 
consular regime. Though the arbitral court ren- 
dered a Solomon-like award which endeavored to 


placate both parties, the result really was favorable 
to the French whose military needs were recognized 
as taking precedence over all others. The court 
stated that it w T as wrong for the German Consul not 
to recognize — 

the rights of exclusive jurisdiction which appertain to the 
occupying state in foreign territory, as well as in countries 
under capitulations, as regards the soldiers of the army of 
occupation, and the actions whatever they may be or from 
wherever they may come which are of a nature to compromise 
its safety. (Deserters at Casablanca, G. G. Wilson, "The 
Hague Arbitration" Cases, p. 91.) 

Likewise in the occupation of Tunis in 1881, the 
French tried some Italians who were urging vio- 
lence in the military courts and refused to turn 
them over to the Italian consul who, the French 
alleged, would free them. (Robin op. cit, p. 671.) 
During the occupation of Crete by an international 
army in 1897, the military commanders were given 
complete jurisdiction over all offenses against the 
army, and Great Britain proclaimed the same rule 
when Cyprus was occupied in 1878. An American 
was held under French military jurisdiction in 
Madagascar in 1895, despite the provisions of the 
1881 consular treaty between the United States and 
Madagascar. A final example of this rule of prior- 
ity for the occupying forces is to be found in Bis- 
marck's instructions to the German Consul in 
Samoa in 1889 when he declared that the occupant 
had the right to defend himself by force against 
any threat to his safety. As summed up by Robin 
(ibid., p. 670) "In Capitulations countries, the 
military jurisdiction is competent for all attacks on 
the security of the army of occupation." 

Application to the problem. — Though the forces 
of state N have occupied a large slice of state M, 


the fundamental juridical status of the area has not 
changed. Titles still belong to state M and the 
extraterritoriality treaty between state M and state 
T is still in force. The local laws of state T re- 
main in effect insofar as they are not inconsistent 
with the military needs of state M. The latter 's 
rule is primary in all matters affecting the safety 
of its troops. If the nationals of state T had com- 
mitted a crime or an act against the occupant, there 
would be no doubt as to the correctness of state N's 
position were that power to try the nationals in its 
military courts. In the problem presented, how- 
ever, the nationals concerned are accused of crime 
against citizens of state M and thus would seem to 
be eligible for trial by their own consul under the 
treaty, the security of N's forces apparently not 
being involved. It is a jurisdictional dispute which 
ought to be a matter of negotiation between states 
T and N. It is therefore primarily a diplomatic 
and not a naval problem. 

The Commander of the Tafa should remain close 
at hand, keeping in touch with the situation, and 
should notify the consul that he is ready to give 
protection if the lives of the state T nationals are 
placed in jeopardy. He should not issue any pro- 
vocative demands upon the N authorities. The 
situation does not warrant such a drastic step 
w 7 hich might involve state T in a difficult and em- 
barrassing episode. Naval commanders should 
deal with local authorities through their own ac- 
credited consular and diplomatic representatives, 
and should threaten or use force in foreign coun- 
tries only as a last resort dictated by the demands 
of self-defense. 


On occasions where injury to the United States or to citi- 
zens thereof is committed or threatened, in violation of the 
principles of international law or treaty rights, the com- 
mander in chief shall consult with the diplomatic representa- 
tive or consul of the United States, and take such steps as 
the gravity of the case demands, reporting immediately to 
the Secretary of the Navy all the facts. The responsibility 
for any action taken by a naval force, however, rests wholly 
upon the commanding officer thereof. (U. S. Navy Regula- 
tions, Rule 722.) 

Resume. — When states employ force against one 
another in time of peace, whether such measures 
be called reprisals or something else, international 
law is confronted with one of its most serious and 
difficult problems. The laws of war and neutrality 
cannot be made to apply in their entirety because 
technically a state of peace still reigns. The peace 
is a disturbed one, however, the contestants taking 
on some of the aspects of belligerents and third 
states becoming in reality quasi-neutrals. The 
terminology is apt to be very confusing because the 
legal situation itself is so muddled. The problems 
arise as a result of the absence of an organized 
international government which would decide ques- 
tions of damages, and which would supervise law 
enforcement. Due to the lack of such a govern- 
ment, states have been in the habit of taking the 
law into their own hands under the theory of "self- 
lielp" which permits coercion w T hen legally an in- 
jury has been received. In practice, the Great 
Powers, the only states which had effective force 
at their disposal, have abused the theory and have 
engaged in measures short of war against weaker 
nations ostensibly under the guise of law enforce- 
ment, but actually for political ends. 


The weaker powers in such situations have usu- 
ally not cared or been able to regard such meas- 
ures as instituting a legal state of war. As a re- 
sult, considerable practice has accumulated in- 
volving the procedures and tactics followed in 
these "force in peace" relationships. Unable to 
control the political use of force, international 
lawyers have accepted the practice and have for- 
mulated a few rules governing the de facto use of 
force. Since the framing of the League of Na- 
tions Covenant and the ratification of the Pact of 
Paris (Kellogg-Briand Treaty) the problem has 
continued to be an acute one. States using 
military and naval force against other powers 
have been reluctant to term their actions "war" 
because such a declaration would seem to identifv 
them as violators of treaties which renounced or 
put restrictions upon the going to war. Since 1920 
the only occasion upon which a participant in an 
international struggle has admitted that war was 
in progress was in 1933 when on May 10th of that 
year Paraguay formally declared war on Bolivia. 
None of the actual contestants in the Sino-Jap- 
anese or the Italo-Ethiopian conflicts has admitted 
a war status, though during the latter embroglio 
the American President "found" a war and most 
of the members of the League decided that Italy 
had "resorted to war" in violation of the Covenant. 

Governing these non-war situations there is very 
little in the w 7 ay of specific rules. Certain general 
principles, however, are applicable, and though 
these may seem inconsistent with the laws of peace 
and not in harmony with what many may regard 
as the proper ends of law, they must be accepted 
for the time being for lack of anything better. The 


most important of these general principles is that 
which specifies that the state employing force may 
interfere with the rights of third states to an ex- 
tent reasonably necessary for the attainment of 
the military or naval objective. Quasi-neutrals 
must accept some inconvenience. Examples of this 
necessary compromise between the interests of the 
force-employing state and third parties is the right 
of the former to identify all vessels and aircraft 
crossing a pacific blockade and the further right 
to use force to supplement this right of identifica- 
tion. Such an adjustment affords the blockading 
state an adequate opportunity to pursue its objec- 
tive and yet does not accord it the complete bellig- 
erent rights of visit and search. A state using such 
measures cannot expect all the advantages of bel- 
ligerency if it is unwilling to assume its obligations. 
The right of identification is a reasonable compro- 
mise for a non-war operation. 

In military occupation on land, when no war 
status exists, a similar balancing of interests is pos- 
sible. The occupant inevitably has priority in all 
matters relating to the security of its forces, but 
such rights do not include a termination of treaties 
or a complete suppression of the local laws. The 
guiding word in all this is " reasonable' ' which, 
though vague in the abstract, is capable of sensible 
interpretation in actual situations. 


(a) If the airplane is still with the Safa, the 
commander of the Sogu should direct the Safa to 
lie to, should proceed to the Safa to protect it, and 
should notify the commander of the N forces that 
the Safa is a vessel of state S and is not to be 


molested, identification being all that the Safa is 
legally required to furnish the airplane. If the 
airplane has left the Safa, the Sogu should direct 
the latter to proceed into the port, and, if deemed 
essential for the protection of the Safa, the So</u 
should accompany it into the port. 

(b) The commander of the Tafu should warn 
the Noan that if the latter continues to fire upon 
the T-21, he will fire upon the Noan to force it to 
desist. He should attempt to interpose the Tafu 
between the Noan and the airplane with the object 
of halting the firing and should send out a small 
boat to rescue the survivors of the T-21. 

(c) The commander of the Tafu should consult 
with the consul of state T at Mount and should 
report the incident to his superiors in the Navy 
Department. A demand for the return of the 
nationals of state T or a threat of the use of force 
on the part of the commander of the Tafu would 
not be warranted by the facts of this situation. As 
long as no immediate threat to the lives and prop- 
erty of state T nationals is involved, the matter is 
one for diplomatic negotiation between states T 
and N. 

Situation III 


There is in state B an armed attempt of party C, 
the Commoners, to obtain control of the established 
government of state B and the Commoners have ob- 
tained military control of one-half of state B and 
the ports in that area. Armed vessels of state B 
and of the Commoners are cruising off the coast. 
Vessels of war of other states are also cruising off 
the coast under instructions to maintain the rights 
of their nationals. Such provisions as those 
of the Non-intervention Scheme of Observation, 
March 8, 1937, bind states D, E, F, and G. Such 
provisions as those of the Joint Resolution of the 
United States, May 1, 1937, bind states F, G, H, 
and I, and states D, E, H, and I were bound by the 
Nyon Agreement of September 14, 1937. All states 
were parties to the submarine warfare rules of 

(a) The Feran, a merchant vessel, lawfully fly- 
ing the flag of state F, bound for port R, which is 
under the control of state B, with a cargo of unas- 
sembled aircraft parts, is met 10 miles off the coast 
by the Cape, a cruiser flying the flag of the Com- 
moners. The Cape sends a small boat with three 
men toward the Feran after it had summoned the 
Feran to come to and to submit to capture on the 
ground that this action is in accord with the Joint 
Resolution of May 1, 1937. The Feran asks by radio 

167533—40 7 


for instructions or aid from the Fona, a nearby 
cruiser of state F. 1. What are the legal rights? 
2. Would the rights be the same if the summons had 
been by a cruiser of state B ? 

(b) The Iris, a merchant vessel lawfully flying 
the flag of state I, with a cargo of barbed wire, is 
met by a submarine which does not disclose its 
identity, but orders the crew to take to the boats 
and row to fishing vessels which are in the vicinity 
as the Iris will be sunk after ten minutes. The Iris 
asks by radio for instructions or aid from the Iona, 
a nearby cruiser of state I. 1. What are the legal 
rights? 2. Would the rights be the same if the 
submarine had been under the flag of the Com- 
moners? 3. Would the rights be the same if the 
submarine had been under the flag of state D ? 

(c) The Gyra, an oil tanker lawfully flying the 
flag of state G, armed "for the preservation of dis- 
cipline," is met 10 miles off the coast by the Bain, 
a cruiser of state B. The Bain summons the Gyra 
to come to for visit and search and as the small boat 
from the Bain comes alongside, the crew of the 
Gyra drive it off with the arms on board. The 
Bain then signals that it is about to sink the Gyra, 
The Gyra asks by radio for instructions or aid from 
the Geno, sl nearby cruiser of state G. 1. What are 
the legal rights? 2. Would the rights be the same 
if the summons was by a cruiser of the Commoners ? 

In each of the above cases should a nearby cruiser 
of state H take any action if specially requested by 
the merchant vessels ? 


(a) The Fona should notify the Feran that it is 
coming to its aid to protect it against an illegal act. 


The Fona also should notify the Cape that the lat-' 
ter has no right to interfere with the Feran and 
should threaten the use of force against the Cape 
if it refuses to desist. The rights would be the same 
if the summons had been by a cruiser of state B. 

(&) The lona should notify the Iris to try to 
escape and should notify the submarine that it has 
no rights in this situation and that force will be 
used against it for the protection of the Iris. If 
the lona arrives before the Iris is actually attacked 
it should drive off the submarine by force, and if 
it reaches the place of attack too late to save the 
Iris, it should counter-attack the submarine. The 
rights would be the same if the submarine had 
been under the flag of the Commoners or that of 
state D. 

(c) The Geno should notify the Gyra to cease its 
resistance and should notify the Bain that the lat- 
ter has no right either to visit and search or to sink 
the Gyra and should threaten force to compel it to 
desist. The rights would be same if the summons 
was by a cruiser of the commoners. 

The cruiser of state H should take no action in 
the case of the Feran. In the case of the Iris it 
may intervene and may counter-attack and destroy 
the submarine. In the case of the Gyra, if it wit- 
nesses the attack, it may intervene to protect the 
Gyra but has no authority to counter-attack or 
destroy the Bain. 

The Spanish Civil Strife — General. — The situ- 
ation in state B where the Commoners are en- 
gaged in an attempt to obtain control of the 
established government is obviously very similar to 
the legal state of affairs prevailing in Spain from 
July 1936 to 1939. The regular rules of belliger- 


ency do not apply, for no war exists in the legal 
sense. Technically it is a condition of insurgency 
only. Third states are not subject to the obliga- 
tions of neutrality under general international law 
and the two contestants do not possess belligerent 
rights. In both the Spanish case and in this 
Situation III, however, outside powers have 
adopted special measures which have no precedent 
in international law. The effect of these acts is to 
put the two parties upon the same basis, treating 
them both alike. In operation, therefore, these 
special provisions, in principle, are akin to neu- 
trality. The result has been highly anomalous, for 
third states have assumed an attitude of impar- 
tiality and have taken upon themselves certain 
obligations when there was really no war, no call 
for neutrality, and when under normal circum- 
stances the established, recognized government 
would be Entitled to friendly support as prescribed 
by the laws of peace. Solution to the problems 
must be sought upon the basis of the usual rules 
of insurgency and the particular conventions and 
regulations adopted for this conflict. The words 
" civil strife" have been used advisedly since " civil 
war" would imply the existence of a state of 
belligerency, a legal condition recognized neither in 
Spain nor in state B. 

Maritime rules during insurgency. — During in- 
surgency neither the government nor the insurgent 
forces have the right to visit and search ships of 
third states or to make seizures on the customary 
grounds of contraband, blockade and unneutral 
service. Within territorial waters both parties 
may prevent supplies from reaching their oppo- 
nent. This right of barring access gives no au- 


thority to seize or destroy foreign ships. The 
insurgent or government cruiser in such cases may 
direct the ship to a certain port where the supplies 
may be seized or may remove them from the ship 
provided compensation is rendered. 

This subject of the rights of the parties in in- 
surgency has frequently been discussed in Naval 
War College Situations, the most famous of these 
being that of 1902 when the fundamental principles 
were laid down. 

No right of confiscation or destruction of foreign property 
in such circumstances (in territorial waters) could well be 
recognized and any act of injury so committed against for- 
eigners would necessarily be at the risk of insurgents * * * 
their only right being * * * to prevent the access of 
supplies to their domestic enemy. The exercise of this power 
is restricted to the precise end to be accomplished. (Naval 
War College Situation, 1902, p. 80.) 

Insurgents actually having before the port of the state 
against which they are in insurrection, a force sufficient, if 
belligerency had been recognized, to maintain an international 
law blockade, may not be materially able to enforce the con- 
ditions of a true blockade upon foreign vessels upon the high 
seas, even though they be approaching the port. Within the 
territorial limits of the country, their right to prevent the 
access of supplies to their enemy is practically the same on 
water as on land — a defensive act in the line of hostility to 
the enemy. (Ibid, p. 82.) 

So far as territorial waters are concerned, both the de jure 
and the de facto governments are entitled to take defensive 
measures within the waters adjoining the coast which they 
respectively occupy, but any such action is taken entirely 
under the municipal law and has nothing whatever to do 
with belligerent rights. (British Yearbook of International 
Law, 1937, p. 27.) 

Position of third states during insurgency. — 
When legally there is no war, third states are not 
neutral, and the governments of third states are 


governed by the customary laws of peace in their 
relation with the established government. Foreign 
governments, therefore, may legally sell arms to 
the recognized government but may not do so to 
the insurgents, for such an act would be tanta- 
mount to intervention. The existence of insur- 
gency rather than belligerency tends to be more 
favorable to the constituted authorities than to the 
revolutionists. This is logical enough considering 
the fact that peace still prevails. The Havana 
Convention of 1928 on Rights and Duties of States 
in Civil Strife formally recognizes this favoring of 
the regular government. 

Article 1. The contracting states bind themselves * * * 
to forbid the traffic in arms and war material, except when 
intended for the government, while the belligerency of the 
rebels has not been recognized, in which latter case the rules 
of neutrality shall be applied. 

Article 3. The insurgent vessel, whether a warship or a 
merchantman, equipped by the rebels, which arrives at a 
foreign country or seeks refuge therein, shall be delivered by 
the government of the latter to the constituted government 
of the state in civil strife. (U. S. Treaty Series, No. 814.) 

Unless there is a domestic law to the contrary, 
private persons may sell arms and supplies, at their 
own risk, to either side in cases of insurgency. The 
obligations of neutrality come into the picture only 
when a state like the United States forbids the fit- 
ting out and arming of expeditions on behalf of 
either contestant. (The Three Friends, 166 U. S. 
1.) To this limited extent, where expeditions are * 
involved, third states are really neutral. 

Insurgency and blockade. — It has long been clear 
that neither the government nor the rebel forces 
has the right to establish a blockade as long as there 
is only insurgency. The parent government may 


declare certain ports closed but must enforce that 
order by effective means within the three mile 
limit. What may look, therefore, like a regular 
blockade, is legally only an act of enforcement for 
a domestic decree. The rights of third states upon 
the high seas are unaffected. It has been held that 
such closures must be "effective," the criterion of 
a belligerent blockade thus appearing somewhat 
paradoxically in what is technically a peacetime 
situation. (See Oriental Navigation Co. Claim, 
U. S.-Mexico General Claims Commission, 1928, 
Opinions of Commissioners, 1929, p. 23.) 

This rule that parent state orders of closure 
must be enforced is a midway measure between two 
other possibilities. One of these would be that the 
parent state could close a port by simple decree, 
just as it could if there were no revolt, without any 
requirement that the order be supported by effec- 
tive force. Some who reject this proposition con- 
tend that if the parent government wishes to pre- 
vent access to ports held by revolutionists, it must 
recognize the belligerency of the opposition, that is, 
the peculiar status of a blockade which is not a 
blockade should be discarded. Practice however, 
is still along the lines of "effective" closure with- 
out belligerency. (For a clear discussion of these 
matters see H. Briggs, "The Law of Nations," pp. 

Blockade in the Spanish civil strife. — Early in 
the conflict, the Spanish "Loyalist" government 
declared that certain ports in the hands of the 
rebels constituted a "war zone." In its reply to 
this announcement the American government 
stated that it could not admit the legality of such 
action unless the Spanish government maintained 


an " effective" blockade. The legal lines in this sit- 
uation were not clear. Was the Spanish Govern- 
ment issuing a closure order in the usual sense dis- 
cussed above? It declared a "war zone" but the 
United States replied in terms of a blockade. If 
the government decree was a real blockade order, 
then it should have been treated as a recognition of 
belligerency as was Lincoln's blockade measure in 
1861. (The Prize Cases, 2 Black 635.) If it was 
not a blockade order, the United States should have 
answered in terms of the customary closure rules. 
The normal legal distinctions were thus blurred, a 
situation far from unusual in the whole story of 
the Spanish strife. 

Could General Franco, the insurgent, "blockade" 
Loyalist ports? By their actions outside powers 
admitted that he could intercept and interfere with 
the commerce of third states within the 3-mile 
limit. This was true both at Bilbao and at Barce- 
lona, and his actions there were in conformity with 
those usually allowed to insurgents, as described in 
connection with the Naval War College Situation 
of 1902 above. 

On August 21 Mr. Eric C. Wendelin, in charge of the 
American Embassy in Madrid, received a note verbale, dated 
August 20, 1936, from the Spanish Foreign Office at Madrid 
which stated : 

"Spanish ports in the power of the rebels as well as those 
of Ceuta and Melilla and the ports of our proscription zone in 
Morocco, Balearic and Canary Islands, have all been declared 
a war zone and therefore it is not possible for the ships of our 
fleet to permit the entry into them of merchant ships in order 
in this way to prevent furnishing of provinces of Almeria, 
Murcia, Alicante, and Badajoz and supplies to the rebels." 

The Spanish Foreign Office requested that this information 
be transmitted to the American Government in order that 


American merchant ships may be warned and that thus "pos- 
sible incidents may be avoided." 

Mr. Wendelin reported that he believed that the same com- 
munication had been sent to all other governments. 

The Secretary of State, on August 25, instructed Mr. 
Wendelin to address the following note to the Minister of 
State in reply to the Minister's note verbale of August 20 : 


"I have the honor to acknowledge the receipt of your note 
of August 20, 1936, requesting me to inform my Govern- 
ment, in order that American merchant ships might be 
warned and possible incidents thus avoided, that your Gov- 
ernment has declared Spanish ports in control of the in- 
surgents, both on the Spanish mainland and in Morocco 
and the Balearic and Canary Islands, a war zone into which 
merchant vessels will not be permitted to enter. 

"My Government directs me to inform you in reply that, 
with the friendliest feelings toward the Spanish Govern- 
ment, it cannot admit the legality of any action on the part 
of the Spanish Government in declaring such ports closed 
unless that Government declares and maintains an effective 
blockade of such ports. In taking this position my Govern- 
ment is guided by a long line of precedents in international 
law with which the Spanish Government is doubtless 
familiar." (Press Keleases, Vol. XV, No. 361.) 

November IT, 1936, General Franco announced his inten- 
tion- of stopping the traffic in arms and munitions to 
Barcelona. His note to the Powers said : 

"The scandalous traffic in arms, ammunition, tanks, air- 
planes, and even toxic gases, which is being carried on 
through the port of Barcelona is well known. All this ma- 
terial is being transported to this port in ships flying dif- 
ferent flags whose real nationality in its greater part is 
Russian or Spanish. 

"The National Government, being resolved to prevent this 
traffic with every means of war at its disposal will even go 
so far, if this were necessary, as to destroy that port. 


"Therefore, it warns all foreign ships anchored in that 
harbor of the desirability of abandoning it in a very short 
time to avoid the consequences of damage which, uninten- 
tionally, might be caused to them on the occasion of the 
military action referred to of which no further warning 
will be given." (London Times, Nov. 20, 1936.) 

Insurgent vessels and piracy. — Despite the court 
decision in the famous case of the Ambrose Light 
(25 F. 408) in the last century, insurgent craft 
on the high seas or in territorial waters are not 

The declaration of piracy against vessels which have risen 
in arms, emanating from a government, is not binding upon 
the other states. (Habana Convention 1928, op. cit., Art. 2.) 

An insurgent government is regarded as possessing suffi- 
cient responsibility to prevent its naval officers from being 
pirates when they conform to the laws of war, even though 
their actions may be illegal because they are not properly 
qualified to exercise belligerent functions. (British Year- 
book of International Law, 1938, pp. 203-204.) 

Illegal actions upon the high seas are therefore 
not synonymous with piracy. A state or a revo- 
lutionary group can be held responsible for the 
unlawful acts of its vessels, and though often the 
epithet of piracy is hurled at some grossly unlaw- 
ful act committed by a belligerent or an insurgent 
at sea, the terminology is moral rather than legal. 
Piracy in the legal sense is a special form of con- 
current jurisdiction under which the warships of 
all states on the high seas have the authority to 
seize pirate vessels, piracy consisting of an act of 
violence for a private end outside the authority of 
any political group or government. 

Harvard draft code and piracy. — Article 3. Piracy is 
any of the following acts, committed in a place not within 
the territorial jurisdiction of any state. 


1. Jtny act of violence or of depredation committed with 
intent to rob, rape, wound, enslave, imprison or kill a person 
or with intent to steal or destroy property, for private ends 
without bona fide purpose of asserting a claim of right, pro- 
vided that the act is connected with an attack on or from the 
sea or in or from the air. If the act is connected with an 
attack which starts from on board ship, either that ship or 
another ship which is involved must be a pirate ship or a ship 
without national character. 

2. Any act of voluntary participation in the operation of 
a ship with knowledge of facts which make it a pirate ship. 

3. Any act of instigation or of intentional facilitation of an 
act described in paragraph 1 or paragraph 2 of this article. 
(American journal of International Law, 1932, Supplement, 
p. 743.) 

The Nyon and Geneva arrangements. — Because 
of the many attacks upon merchant shipping in 
the Mediterranean by unidentified submarines dur- 
ing the course of the Spanish conflict in 1937, the 
French and English governments took the initia- 
tive in formulating special arrangements for deal- 
ing with this situation. At Nyon and at Geneva 
agreements were framed which gave to the war- 
ships of the participating powers special rights not 
accorded by customary international law. The 
Nyon arrangement in its preamble stated that these 
submarine attacks "should be justly treated as acts 
of piracy." This statement, however, did not 
legally confer the status of piracy upon submarines 
making unlawful attacks. "Illegal" not "pirati- 
cal" was the proper term to apply to the actions of 
the undersea craft. These arrangements dealt 
with the method of coping with a particularly 
flagrant violation of the rights of innocent ships. 

It should be remembered that even a visit and 
search conducted in the lawful manner would have 
been illegal since there was no belligerency. What 


these arrangements did was to confer upon the 
warships of the participating states the right to 
deal drastically with any interference which in- 
volved a violation of the legal rules in regard to 
visit and search. Under the general law warships 
of third powers may intervene to protect their own 
vessels from any sort of molestation. By the Nyon 
and Geneva arrangements any warship could in- 
tervene to protect any non-Spanish ship and was 
enpowered even to counter-attack and, if possible, 
to destroy the submarine. This last grant of au- 
thority goes beyond the usual regulations which 
permit a reasonable use of force to protect a vessel 
but which do not permit the use of force beyond 
that required for saving the attacked vessel. These 
arrangements were designed to handle an illegality 
within an illegality, that is, they were framed with 
the aim of preventing an illegal method of conduct- 
ing what was in any event an illegal operation. 
Belligerent rights were not granted by these agree- 
ments which did not imply that lawful methods 
would legalize action inconsistent with a condition 
of insurgency. 

The Nyon Arrangement, September 14, 1937 

Whereas arising out of the Spanish conflict attacks have 
been repeatedly committed in the Mediterranean by sub- 
marines against merchant ships not belonging to either of 
the conflicting Spanish parties; and 

Whereas these attacks are violations of the rules of inter- 
national law referred to in Part IV of the Treaty of London 
of April 22, 1930 with regard to the sinking of merchant 
ships and constitute acts contrary to the most elementary 
dictates of humanity, which should be justly treated as 
acts of piracy ; and 

Whereas without in any way admitting the right of either 
party to the conflict in Spain to exercise belligerent rights 


or to interfere with merchant ships on the high seas even 
if the laws of warfare at sea are observed and without 
prejudice to the right of any participating Power to take 
such action as may be proper to protect its merchant ship- 
ping from any kind of interference on the high seas or to 
the possibility of further collective measures being agreed 
upon subsequently, it is necessary in the first place to agree 
upon certain special collective measures against piratical 
acts by submarines: 

(a) Except as stated in (b) and (c) below, no submarine 
will be sent to sea within the Mediterranean. 

(b) Submarines may proceed on passage after notifica- 
tion to the other participating Powers, provided that they 
proceed on the surface and are accompanied by a surface 

(c) Each participating Power reserves for purposes of 
exercises certain areas defined in Annex I hereto in which 
its submarines are exempt from the restrictions mentioned 
in (a) or (b). 

The participating Powers further undertake not to allow 
the presence in their respective territorial waters of any 
foreign submarines except in case of urgent distress, or 
where the conditions prescribed in sub-paragraph (b) above 
are fulfilled. 

VI: The participating Powers also agree that, in order 
to simplify the problem involved in carrying out the meas- 
ures above described, they may severally advise their mer- 
chant shipping to follow certain main routes in the Medi- 
terranean agreed upon between them and defined in Annex 
II hereto. 

VII. Nothing in the present agreement restricts the right 
of any participating Power to send its surface vessels to 
any part of the Mediterranean. 

VIII. Nothing in the present agreement in any way preju- 
dices existing international engagements which have been 
registered with the Secretariat of the League of Nations. 

IX. If any of the participating Powers notifies its inten- 
tion of withdrawing from the present arrangement, the noti- 
fication will take effect after the expiry of thirty days and 
any of the other participating Powers may withdraw on the 


same date if it communicates its intention to this effect be- 
fore that date. 

Done at Nyon this fourteenth day of September nineteen 
hundred and thirty seven, in a single copy, in the English 
and French languages, both texts being equally authentic, 
and which will be deposited in the archives of the Secretariat 
of the League of Nations. 




Anthony Eden S. Polychroniadis 



N. Momtchiloff TITRKFY 

EGYPT Dr> r . Aras 

Wacyf Boutros-Ghali UNION OF SOVIET 


FRANCE Maxime Litvtnoff 



In view thereof the undersigned, being authorized to this 
effect by their respective Governments, have met in con- 
ference at Nyon between the 9th and the 14th September 
1937, and have agreed upon the following provisions which 
shall enter immediately into force : 

I. The participating Powers will instruct their naval 
forces to take the action indicated in paragraphs II and III 
below with a view to the protection of all merchant ships 
not belonging to either of the conflicting Spanish parties. 

II. Any submarine which attacks such a ship in a manner 
contrary to the rules of international law referred to in the 
International Treaty for the Limitation and Reduction of 
Naval Armaments signed in London on April 22, 1930, and 
confirmed in the Protocol signed in London on November 
6, 1936, shall be counter-attacked and. if possible, destroyed. 


III. The instruction mentioned in the preceding para- 
graph shall extend to any submarine encountered in the 
vicinity of a position where a ship not belonging to either 
of the conflicting Spanish parties has recently been attacked 
in violation of the rules referred to in the preceding para- 
graph in circumstances which give valid grounds for the 
belief that the submarine was guilty of the attack. 

IV. In order to facilitate the putting into force of the 
above arrangements in a practical manner, the participating 
Powers have agreed upon the following arrangements : 

1. In the western Mediterranean and in the Malta Chan- 
nel, with the exception of the Tyrrhenean Sea, which may 
form the subject of special arrangements, the British and 
French fleets will operate both on the high seas and in the 
territorial waters of the participating Powers, in accord- 
ance with the division of the area agreed upon between the 
two Governments. 

2. In the eastern Mediterranean, 

(a) Each of the participating Powers will operate in its 
own territorial waters; 

(b) On the high seas, with the exception of the Adriatic 
Sea, the British and French fleets will operate up to the 
entrance to the Dardanelles, in those areas where there is 
reason to apprehend danger to shipping in accordance with 
the division of the area agreed upon between the two Gov- 
ernments. The other participating Governments possessing 
a sea border on the Mediterranean, undertake, within the 
limit of their resources, to furnish these fleets any assistance 
that may be asked for; in particular, they will permit them 
to take action in their territorial waters and to use such of 
their ports as they shall indicate. 

3. It is further understood that the limits of the zones re- 
ferred to in subparagraphs 1 and 2 above, and their alloca- 
tion shall be subject at any time to revision by the partici- 
pating Powers in order to take account of any change in 
the situation. 

V. The participating Powers agree that, in order to sim- 
plify the operation of the above-mentioned measures, they 
will for their part restrict the use of their submarines in 
the Mediterranean in the following manner: 

(League of Nations Document, C.409.M.273.1937.VII) 


Agreement Supplementary to the Nyon Arrangement, 
Geneva, September 17, 1937 

Whereas under the Arrangement signed at Nyon on the 
14th September, 1937, whereby certain collective measures 
were agreed upon relating to piratical acts by submarines 
in the Mediterranean, the participating Powers reserved the 
possibility of taking further collective measures; and 

Whereas it is now considered expedient that such meas- 
ures should be taken against similar acts by surface vessels 
and aircraft; 

In view thereof, the undersigned, being authorized to this 
effect by their respective Governments, have met in confer- 
ence at Geneva on the seventeenth day of September and 
have agreed upon the following provisions which shall enter 
immediately into force: 

I. The present Agreement is supplementary to the Nyon 
Arrangement and shall be regarded as an integral part 

II. The present Agreement applies to any attack by a sur- 
face vessel or an aircraft upon any merchant vessel in the 
Mediterranean not belonging to either of the conflicting 
Spanish parties, when such attack is accompanied by a vio- 
lation of the humanitarian principles embodied in the rules 
of international law with regard to warfare at sea, which 
are referred to in Part IV of the Treaty of London of April 
22nd, 1930, and confirmed in the Protocol signed in London 
on November 6th, 1936. 

III. Any surface war vessel, engaged in the protection of 
merchant shipping in conformity with the Nyon Arrange- 
ment, which witnesses an attack of the kind referred to in 
the preceding paragraph shall: 

(a) If the attack is committed by an aircraft, open fire on 
the aircraft; 

(b) If the attack is committed by a surface vessel, inter- 
vene to resist it within the limits of its powers, summoning 
assistance if such is available and necessary. 

In territorial waters each of the participating Powers con- 
cerned will give instructions as to the action to be taken by 
its own war vessels in the spirit of the present Agreement. 


Done at Geneva this seventeenth day of September 1937, 
in the English and French languages, both texts being 
equally authentic, in a single copy which will be deposited 
in the archives of the Secretariat of the League of Nations. 
(League of Nations Document C.409.M.273. 1937. VII.) 

The submarine rules. — Submarine warfare and piracy 
were definitely linked together in the resolutions presented 
by Mr. Koot at the Conference on Limitation of Armaments 
in Washington in 1922. As presented, Mr. Root's proposal 
sought to prohibit all use of submarines against merchant 
vessels and to attach the penalty of piracy to any such em- 
ployment. As finally embodied in the unratified Treaty 
Relating to the Use of Submarines and Noxious Gases in 
Warfare, the destruction of merchantmen without prior 
visit, search, and placement of the personnel in safety was 
declared to be a violation of the laws of war subjecting 
any person in the service of any Power who should violate 
such a rule, whether or not such person is under orders of 
a governmental superior, to trial and punishment as if for 
an act of piracy. This conclusion was reached in spite of 
the consensus that it was not competent for the five Powers 
present at the Conference to establish new rules of inter- 
national law, including the branding of such action as piracy 
jure gentium. The decision was also taken in spite of the 
fact that only one delegate, Mr. Hanihara of Japan, raised 
a question as to the exact meaning of "punishment as if for 
an act of piracy," which was brusquely pushed aside by 
Mr. Hughes and Mr. Root who made no adequate answer 
and immediately cut off further debate. While the treaty 
was not ratified, it may be pertinent to point to the care- 
fully studied observation in the comment on the Draft Con- 
vention on Piracy of the Harvard Law School Research in 
International Law that "properly speaking * * * piracy 
is not a legal crime or offense under the law of nations." 

Part IV of the London Naval Treaty of 1930 invited 
states to accede to the proposition that according to inter- 
national law submarines must conform to the rules of sur- 
face craft, and that, except in case of resistance to visit and 
search, merchant vessels must not be destroyed without first 

167533—40 8 


placing the crew, passengers, and ship's papers in safety. 
Non-conformity by submarines was not branded an act 
of piracy, nor was any state authorized to bring to trial 
or to inflict the punishment for piracy upon the officers or 
crew of any submarine violating the rules. While nine of 
the states invited to the Nyon Conference had agreed to 
abide by the rules of this treaty, the Spanish Government 
had not done so. (N. J. Padelford, "Foreign Shipping dur- 
ing the Spanish Civil War," American Journal of Inter- 
national law, 1938, pp. 27^-275.) 

London, November 6, 1936 

Whereas the Treaty for the Limitation and Reduction 
of Naval Armaments signed in London on the 22nd April, 
1930, has not been ratified by all the signatories; 

And whereas the said treaty will cease to be in force after 
the 31st December, 1936, with the exception of Part IV 
thereof, which sets forth rules as to the action of submarines 
with regard to merchant ships as being established rules of 
international law, and remains in force without limit of 

And whereas the last paragraph of Article 22 in the said 
Part IV states that the high contracting parties invite all 
other Powers to express their assent to the said rules; 

And whereas the Governments of the French Republic 
and the Kingdom of Italy have confirmed their acceptance 
of the said rules resulting from the signature of the said 
treaty ; 

And whereas all the signatories of the said treaty desire 
that as great a number of Powers as possible should accept 
the rules contained in the said Part IV as established rules 
of international law; 

The undersigned, representatives of their respective gov- 
ernments, bearing in mind the said Article 22 of the treaty, 
hereby request the Government of the United Kingdom of 
Great Britain and Northern Ireland forthwith to communi- 
cate the said rules, as annexed hereto, to the governments 
of all the Powers which are not signatories of the said 
treaty, with an invitation to accede thereto definitely and 
without limit of time. 



(1) In their action with regard to merchant ships, sub- 
marines must conform to the rules of international law to 
which surface vessels are subject. 

(2) In particular, except in the case of persistent refusal 
to stop on being duly summoned, or of active resistance to 
visit or search, a warship, whether surface vessel or sub- 
marine, may not sink or render incapable of navigation a 
merchant vessel without having first placed passengers, 
crew and ship's papers in a place of safety. For this pur- 
pose the ship's boats are not regarded as a place of safety 
unless the safety of the passengers and crew is assured, in 
the existing sea and weather conditions, by the proximity of 
land, or the presence of another vessel which is in a position 
to take them on board. 

Signed in London, the 6th day of November, nineteen 
hundred and thirty-six. (British Treaty Series, No. 29, 

Nonintervention and the Spanish civil strife. — 
Soon after the outbreak of the fighting in Spain 
in July 1936, the European powers instituted the 
scheme of Non-intervention. This was under- 
taken primarily for political reasons, the outside 
states being desperately anxious to avoid involve- 
ment in the struggle. The ideological division be- 
tween the Fascist powers supporting General 
Franco and those inclining to favor the established 
republican government made the crisis acute. It 
was fe ared that the rival groups outsi de might 
come into direct collision as a result of their efforts 
to "supply their Spanish favorites with the sinews 
ofjwar. The Non-Intervention scheme took the 
form not of a comprehensive, binding international 
treaty, but rather of a series of exchanges of notes 
and of unilateral domestic acts which frequently 
varied with one another but were generally pat- 



terned along the same lines. The nations partici- 
pating in the arrangement undertook to forbid the 
sale of arms and implements of war to either side. 
The Spanish rebels were thus placed upon the same 
level as the so-called Loyalists, even though there 
was no belligerency. The whole scheme was 
unique, and there has been nothing like it in the 
history of international law. In undertaking these 
special obligations, the British and French Gov- 
ernments waived the right to assist the government 
they recognized in Spain. They did so hoping 
thereby to prevent Italy and Germany from giving 
governmental aid to the rebels, a right which those 
two powers did not possess, at least not until they 
recognized General Franco as the legitimate ruler 
of Spain in November 1936 after the Non-interven- 
tion plan had supposedly come into operation. 

To implement the Non-intervention accord, a 
special Scheme of Observation was adopted in May 
1937. By its terms warships of Great Britain, 
France, Italy, and Germany, were to patrol Span- 
ish marginal seas in a zone extending from the 3- 
mile limit outward for 7 miles. In addition, 
elaborate plans were made for observers to travel 
on the ships of third states going to Spain, the idea 
of all this being to check up on the supplies reach- 
ing Spain and to report any infractions of the Non- 
intervention accord to a central committee in Lon- 
don. This patrol by war vessels was not a blockade 
in any sense of the word. The powers engaged 
were not at war with Spain and were not taking 
reprisals. The patrol ships had no right of'visit 
and search, and no right to interfere with the ves- 
sels of states not parties to the Non-intervention 


agreement. A right of approach belonged to the 
patrol ships but they could not employ force to 
ascertain the true character of a vessel under sus- 
picion which flew the flag of a non-signatory power. 
This situation presented delicate questions for 
international law. It was unique and went into 
effect as a special scheme for a special state of 
affairs. The terms of the observation plan will be 
found in the appendix to this volume. 

(The non-intervention scheme) owes its inception to M. 
Blum of France and is founded upon an exchange of notes 
between Britain and France, August 15th, 1936, these notes, 
which were substantially identical, contained reference to the 
establishment of a common attitude toward the Spanish strife, 
a preamble, and three declarations of policy. The preamble 
recited that the governments, deploring the events in Spain, 
had decided to abstain rigorously from all interference (de 
toute ingcrence), direct or indirect, in the internal affairs of 
Spain, on the basis of the desire to avoid complications preju- 
dicial to the good relations between their "Peoples." They 
then "declared": (1) they would prohibit the direct or in- 
direct exportation or reexportation of all "arms, munitions 
and materials of war as well as all airplanes, mounted or 
dismantled, and all ships of war" from their territory to 
Spanish territories; (2) the prohibitions would apply to con- 
tracts in the process of execution ; (3) the governments would 
keep other governments participating in the mutual under- 
standing {cette entente) informed of the measures taken to 
carry out the prohibitions. The application of the declara- 
tion was made contingent upon the adherence of the other 
government, plus the governments of Germany, Italy, the 
Soviet Union, and Portugal. 

Twenty-seven governments eventually made similar decla- 
rations, in one form or another. However, the composition 
and contents of the notes varied so much it can hardly be said 
that all of the states declared their intention of doing iden- 
tically the same things. Above all, it must be emphasized 
that there was no one instrument which all signed or adhered 


to, in spite of constant employment of the term "agreement." 
The agreement was merely a concert of policy, and its fulfill- 
ment depended entirely upon the initiative of each state. 

Analysis of the notes reveals that 15 (aside from those of 
Britain and France) of the 27 repeated verbatim both the 
preambulatory reasons for making the declaration and the 
three basic declarations of policy. Between these states and 
France and Great Britain then, there was a community of 
policy on the steps to be taken and on the reasons for taking 

The notes of six states repeated verbatim the three seriatim 
declarations but omitted the preamble. By omitting the pre- 
amble these states left themselves free to engage in all forms 
of interference or intervention not specifically set forth in 
the first two declarations, while the seventeen others noted 
above agreed to refrain from all interference, direct or indi- 
rect. Legally speaking, these six states restricted themselves 
less than did the others, and they are hardly to be condemned 
for allowing volunteers, officers, financial, and moral aid pass- 
ing to Spain, public opinion and newspapers notwithstand- 
ing. (N. J. Padelford, "The International Non-intervention 
Agreement and the Spanish Civil War," American Journal 
of International Law, Oct. 1937, pp. 579-580.) 

The United States and Spanish civil strife. — The 
American Government, acting independently, en- 
acted legislation in harmony with the provisions of 
the European non-intervention scheme. On Jan- 
uary 8, 1937 a special law of Congress made un- 
lawful the export of arms, ammunition, or imple- 
ments of war to Spain during the existence of the 
state of civil strife. The so-called neutrality law 
of May 1, 1937, included a provision dealing with 
civil strife and under that statutory authorization 
the President proclaimed again an embargo on 
armed shipments to Spain. The United States 
thus dealt impartially with both sides, despite the 
fact that w T e were not really neutral, a status im- 
possible without the existence of war. 


Special act of Congress in regard to Spain. — 

Joint Resolution to Prohibit the Exportation of Arms, 
Ammunition, and Implements of War From the United 
States to Spain, January 8, 1937 

Resolved by the Senate and House of Representatives of 
the United States of America in Congress assembled, That 
during the existence of the state of civil strife now obtain- 
ing in Spain it shall, from and after the approval of this 
Resolution, be unlawful to export arms, ammunition, or 
implements of war from any place in the United States, or 
possessions of the United States, to Spain or to any other 
foreign country for transshipment to Spain or for use of 
either of the opposing forces in Spain. Arms, ammunition, 
or implements of war, the exportation of which is pro- 
hibited by this Resolution, are those enumerated in the 
President's Proclamation No. 2163 of April 10, 1936. 

Licenses heretofore issued under existing law for the ex- 
portation of arms, ammunition, or implements of war to 
Spain shall, as to all future exportations thereunder, ipso 
facto be deemed to be cancelled. 

Whoever in violation of any of the provisions of this 
Resolution shall export, or attempt to export, or cause to 
be exported either directly or indirectly, arms, ammunition, 
or implements of war from the United States or any of its 
possessions, shall be fined not more than ten thousand dollars 
or imprisoned not more than five years, or both. 

When in the judgment of the President the conditions 
described in this Resolution have ceased to exist, he shall 
proclaim such fact, and the provisions hereof shall there- 
upon cease to apply. 

Approved, January 8, 1937, at 12.30 p. m. (Public Reso- 
lution, No. 1, 75th Cong.) 

Sections of the Act of May 1, 1937. — 

Sec. 1. "(c) Whenever the President shall find that a 
state of civil strife exists in a foreign state and that such 
civil strife is of a magnitude or is being conducted under 
such conditions that the export of arms, ammunition, or 
implements of war from the United States to such foreign 
state would threaten or endanger the peace of the United 


States, the President shall proclaim such fact, and it shall 
thereafter be unlawful to export, or attempt to export, or 
cause to be exported, arms, ammunition, or implements of 
war from any place in the United States to such foreign 
state, or to any neutral state for transshipment to, or for the 
use of, such foreign state." 

"Sec. 10. Whenever the President shall have issued a 
proclamation under the authority of section 1, it shall there- 
after be unlawful, until such proclamation is revoked, for 
any American vessel engaged in commerce with any bellig- 
erent state, or any state wherein civil strife exists, named in 
such proclamation, to be armed or to carry any armament, 
arms, ammunition, or implements of war, except small arms 
and ammunition therefor which the President may deem 
necessary and shall publicly designate for the preservation 
of discipline aboard such vessels." (Public Res. No. 27, 
75th Cong., ch. 146, 1st sess.) 

Proclamation in regard to arms. — 


Section 10 of the joint resolution of Congress approved 
May 1, 1937, amending the joint resolution approved August 
31, 1935, provides as follows : 

"Sec. 10. Whenever the President shall have issued a 
proclamation under the authority of section 1, it shall there- 
after be unlawful, until such proclamation is revoked, for 
any American vessel engaged in commerce with any belliger- 
ent state, or any state wherein civil strife exists, named in 
such proclamation, to be armed or to carry any armament, 
arms, ammunition, or implements of war, except small arms 
and ammunition therefor which the President may deem 
necessary and shall publicly designate for the preservation 
of discipline aboard such vessels." 

Section 11 of the said joint resolution provides as follows : 

"Sec. 11. The President may, from time to time, promul- 
gate such rules and regulations, not inconsistent with law, 
as may be necessary and proper to carry out any of the pro- 
visions of this Act; and he may exercise any power or 
authority conferred on him by this Act through such officer 
or officers, or agency or agencies, as he shall direct." 


The President's proclamation of May 1, 1937, issued pur- 
suant to the provisions of section 1 of the above-mentioned 
joint resolution provides in part as follows : 

"And I do hereby delegate to the Secretary of State the 
power to exercise any power or authority conferred on me by 
the said joint resolution, as made effective by this my proc- 
lamation issued thereunder, and the power to promulgate 
such rules and regulations not inconsistent with law as may 
be necessary and proper to carry out any of its provisions." 

In pursuance of those provisions of the law and of the 
President's proclamation of May 1, 1937, which are quoted 
above, the Secretary of State announces that American ves- 
sels engaged in commerce with Spain may carry such small 
arms and ammunition as the masters of these vessels may 
deem indispensable for the preservation of discipline aboard 
the vessels. (Press Releases, Vol. 16, No. 396.) 

Attacks on foreign ships during Spanish civil 
strife. — During the Spanish conflict the ships of 
third states were frequently molested both inside 
and outside of territorial waters by surface ves- 
sels, aircraft and submarines' of the insurgent and 
government forces. These attacks were entirely 
unlawful and in many cases foreign powers have 
intervened both to protest sharply and to protect 
their shipping. Following are some instances of 
such unlawful attacks : 

The Nantucket Chief. — Mr. T. Monroe Fisher, American 
vice consul at Palma de Mallorca, reported to the Depart- 
ment through the consulate at Marseille that he was in- 
formed by local naval authorities of the seizure of the 
Nantucket Chief on January 18, 1938, by Nationalist naval 
vessels. The ship is now under the control of a Nationalist 
naval officer. The manifest indicates that the vessel has 
a cargo of gasoline and kerosene shipped from a Russian 
port and destined for Barcelona. 

The crew numbers about 30, of whom about 27 are Amer- 
ican citizens, 1 a Finnish citizen, and 2 British subjects. 

The American oil tanker Nantucket Chief was seized by 
the naval forces of General Franco on the night of January 


17, 1938, in latitude 40°45' N., longitude 3°45' E., approxi- 
mately 48 miles north of the Balearic Islands and 80 miles 
southeast of the nearest point on the Spanish coast. At the 
time of seizure the tanker was carrying a cargo of petroleum 
from the Russian Black Sea port of Tuapse to Barcelona, 
under charter to the Spanish petroleum monopoly. The 
vessel was taken to Palma de Mallorca and the Captain, 
Mr. J. E. Lewis, was taken ashore and imprisoned on Janu- 
ary 26 on charges not known to the Department. 

The Nantucket Chief is a vessel of American registry, 
and the captain and most of the crew are of American 

The Nantucket Chief is owned by the Nantucket Chief 
Steamship Co., a corporation organized under the laws of 
the State of Delaware. 

Representations were made informally to General Franco 
through the American Ambassador to Spain, temporarily 
stationed at St. Jean de Luz, France, with a view to the 
immediate release of this American vessel, of the captain, 
and of the crew. 

The Department is now informed that the Nantucket 
Chief has left Palma de Mallorca for a mainland port or 
ports, and that after the discharge of its cargo the vessel 
and crew will be set at liberty. The Department is further 
informed that Capt. J. E. Lewis, who is still in prison at 
Palma, will be released within a few days. 

Consul T. Monroe Fisher at Palma has reported (Feb. 
10, 1938) to the Department of State that Capt. J. E. Lewis 
was released and left Wednesday morning by plane for 
Cadiz en route to Malaga to join the Nantucket Chief. He 
had been well treated while imprisoned. He had been 
slightly ill with influenza and was given proper medical 

Consul Leo J. Callanan at Malaga reported this afternoon 
that Captain Lewis arrived at Malaga this morning and has 
resumed charge of the Nantucket Chief. The Department of 
State has not yet received word regarding the release of the 
ship although yesterday it did have a message giving the 
information that orders had been issued for the release of 
the ship. (Press Releases, Vol. XVIII, Xos. 436, 437.) 

THE U. S. S. KANE 115 

The U. S. S. Kane. — The Secretary of State sent the fol- 
lowing telegraphic instruction last night to the American 
Embassy at Madrid: 

"August 30, 1936. 
"American Embassy, 

"Madrid, /Spain. 

"The United States Destroyer Kane left Gibralter at 8 : 12 
a. m. August 30, en route to Bilbao to assist in the work 
of evacuating American nationals. According to report 
from her Commanding Officer, at 4 : 10 p. m., August 30, 
while the vessel was at 36 degrees, 33 minutes north and 
7 degrees, 35 minutes west (approximately 38 miles from the 
Spanish coast) an unidentified tri-motored, low winged 
monoplane flew over the Kane and dropped two bombs 
which exploded near the vessel. The Kane was flying the 
American flag at her foremast head and in addition had 
an American ensign horizontal on top of the well deck 
awning. When this attack was made, the Kane increased 
her speed to maneuver away from the plane. At 4 : 25 p. m. 
the plane again flew over the Kane and dropped a third 
bomb. At 4 : 26 p. m. the Kane^s anti-aircraft gun fired 
two rounds in the direction of the plane. At 4 : 32 p. m. the 
plane again flew over the Kane and dropped three more 
bombs, making a total of six. The Kane^s antiaircraft gun 
fired nine rounds in the direction of the plane during its 
approach and retreat. 

The attitude of the American Government in respect to 
the conflict in Spain is well known. The American Govern- 
ment has stressed the complete impartiality of its attitude 
and has publicly stated that, in conformity with its well 
established policy of non-interference with internal affairs 
in other countries, either in time of peace or in the event 
of civil strife, it will, of course, scrupulously refrain from 
any interference whatsoever in the unfortunate Spanish 

"Since the Government forces in Spain have, in the friend- 
liest spirit, made every possible effort to avoid injury to 
American nationals and American property, it can only 
be assumed that the attack on the United States Destroyer 
Kane, if made by a Government plane, was due to her 


identity having been mistaken for a vessel of the opposing 
forces. Because of the friendly attitude of the Spanish 
Government toward the United States and the absence of 
any motive whatsoever for an attack upon an American 
vessel, it is not conceivable that a Government plane would 
knowingly make such an attack. The American Government 
feels confident that it is fully understood in every quarter 
that the sole purpose of the presence of American naval 
vessels about the shores of Spain is to afford facilities for 
the removal of American nationals from Spain. 

"Since the plane making the attack was unidentified, the 
President has directed that this incident be brought to the 
attention of the Spanish Government through you and in- 
formally, with no intention as to recognition, to the atten- 
tion of General Franco through the American Consul at 
Seville, with the request that both sides issue instructions 
in the strongest terms, as the American Government feels 
confident they will desire to do, to prevent another incident 
of this character. 

"Take up this matter immediately with the Spanish Gov- 
ernment in the sense of the foregoing, endeavor to obtain a 
categorical statement as to whether the plane making this 
attack was a Government plane, and urge and insist upon 
definite assurance that appropriate instructions will imme- 
diately be issued to the Government armed forces. Tele- 
graph immediately and fully results of your representa- 
tions." (Press Releases, Vol. XV, No. 363.*) 

Attack in British waters. — The British Government pro- 
tested to General Francisco Franco today against the viola- 
tion of British territorial waters by Insurgent vessels in 
their action against the Loyalist destroyer Jose Luis Diez on 
Dec. 30. Britain reserves the right to claim compensation 
for injuries to four British subjects injured by shell splin- 
ters and damaged property. 

The holding of the destroyer by British authorities at 
Gibraltar is described here as unusual, although not irreg- 
ular. The ship is not interned but her crew, having failed 
to remove her from British territorial waters within the 
period for which she received permission to stay, has been 


repatriated. The ship remains immobilized although pre- 
sumably she would be immediately handed over if the Span- 
ish Government asked for her and arranged to remove her 
without violation of territorial waters. Such a possibility, 
however, seems remote at present. (New York Times, 
January 12, 1939.) 

The Wisconsin. — The American freighter Wisconsin, 
under command of Captain Hiram Taft, left Barcelona 
today for an undisclosed port, so it is now permissible to 
tell you how an armed Rebel trawler fired four shots at her 
off Gibraltar and tried to capture her. 

Captain Taft, who is a Yankee, has been carrying on a 
dangerous Spanish trade all the year through bombings, 
mutinies and other dangers. He refused to halt when 
attacked and pushed straight ahead, for his ship's American 
flag was flying and he carried a legal cargo of lentils, rice 
and other food. 

It was a case of fortune favoring the brave, for the Rebel 
trawler developed engine trouble just at the crucial moment 
and had to abandon the chase. She signaled ahead to a 
Rebel cruiser, which, however, did not molest the Wisconsin. 

Captain Taft made a full report to the United States 
Consul at Barcelona, who in turn forwarded the information 
to the State Department. 

As Captain Taft told the writer the story in the relative 
safety of a Barcelona hotel this is what happened : 


Eighty miles west of Gibraltar the Wisconsin heard an 
SOS from a French ship en route to Brest, France, from 
Oran, Algeria, and in later messages learned that the French 
shipl had been fired on, stopped and boarded by Spanish 
Rebels, who had started to take her to Ceuta, Spanish 
Morocco, when a French cruiser came to her aid. 

The Rebels then gave up their prey, but Captain Taft was 
heading for the same spot and foresaw trouble. He radioed 
to Gibraltar, asking if an American destroyer or cruiser 
were there, but received a negative reply. This was in the 
evening on Nov. 16. 


At 1 A. M. the next day the radio officer informed Captain 
Taft that another French vessel had been captured and 
apparently had not been rescued. 

About 5 o'clock the same morning, the captain continued, 
"when about five and one-half miles south southeast of 
Gibraltar, an armed trawler proceeded alongside, sweeping 
the Wisconsin with a searchlight. At that time the Amer- 
ican flag was flying from the flagstaff and huge American 
flags were painted on the vessel's sides. The trawler kept 
the searchlight on the flagstaff about two minutes and the 
flag was open to windward. 


"The trawler proceeded ahead of the Wisconsin, fired a 
shot across the bow and ordered me to halt, which I refused 
to do. Then another shot was fired and this time it was not 
a blank for shrapnel whistled over me and the chief officer. 
Two more shots were fired, after which the trawler stopped, 
evidently because of engine trouble, but it kept flashing its 
searchlight in the air and then at the Wisconsin. 

"About ten minutes later we were swept by two search- 
lights from a Spanish Rebel cruiser which was lying to the 
east of the Strait. She kept one searchlight on the Amer- 
ican flag about a minute but did not hail and I proceeded 
out of the Strait of Gibraltar." 

This was a typical incident of the Spanish trade. It is a 
hard, dangerous game but it has its rewards in money and 
excitement and, in Captain Taft's case, moral satisfaction 
for the wheat, beans, rice and medical supplies he has 
brought to Loyalist Spain on repeated trips are desperately 
needed. (New York Times, December 4, 1938.) 

The Polos. — That the Fascist Bloc did not confer bel- 
ligerent status upon the Spaniards by their (recognition) 
of the 19th of November, 1936 was clearly manifested by 
the German treatment of the Loyalist seizure of the steamer 
Polos, December 24, supposedly en route from Hamburg to 
Vigo, the German ship was picked up by Basques in * * * 
the Bay of Biscay and taken in with 1,500 tons of "pro- 
hibited freight" and two Spanish insurgent agents on board. 


The German Government, in demanding the release of the 
ship, alleged "the Polos was seized far outside the terri- 
torial waters of the Spanish coast, namely 23 miles north- 
east of Cape Machichaco. The captain of the Palos refused 
to sign a protocol according to which the Palos supposedly 
was seized five miles off the coast, although this alleged loca- 
tion of seizure also lies outside the three mile limit and 
therefore outside the sovereign territory of Spain." The 
Basques denied that the arrest took place outside of their 
jurisdiction, but refused to specify exactly where it did 

If the incident occurred where the Germans charged it 
did, it must be said that the vessel was in a strange location 
for a course Hamburg- Vigo. If the ship was seized five 
miles from the coast, the Spaniards might maintain that 
under their historic interpretation of the principle of juris- 
diction in marginal waters — that is to say, out to six miles 
from the coast — they were acting correctly in seizing the 
German boat. 

If freedom of passage through marginal waters were de- 
manded by Germany, it must be admitted that, while many 
believe there is a right of free passage in time of peace, the 
law is not entirely certain in this regard, and especially in 
time of quasi-pe&ce such as prevails in Spain at the moment. 

Whatever may have been the locus of the seizure of the 
Palos, and regardless of whatever merits there may have 
been in the seizure by the Spaniards in the first instance, 
Germany demanded the release of the vessel, her cargo, and 
the Spanish subjects on board. Failing to secure the re- 
lease of the contraband and the Spanish rebel passengers, the 
German cruiser Koenigsburg seized the 1,500-ton Spanish 
steamer Argonne on January 1, attempted to seize the 
steamer Soton January 2, and seized the steamer Marta Jun- 
quera January 4. The government communique justified the 
action in these words: 

"After the Eed Rulers in Bilbao refused to surrender to 
the German cruiser Koenigsburg the passengers and part of 
the cargo retained from the steamer Palos, the German 
Government, as previously announced, saw itself compelled 
to enforce its demands through counter measures. In pur- 
suit of this necessity to defend German sovereign rights 


against an act of piracy a Red Spanish steamer has been 
seized provisionally by the German naval forces in Spanish 

The loyalists were warned that if their demands were 
not met by January 8, "the Spanish steamers and their car- 
goes will be utilized by the German Government in their 
account with the Spanish Government recognized by it. In 
case of repetition of acts of piracy against German merchant 
vessels, the German Government will be compelled to take 
further measures." The vessels were turned over to the 
rebels on the failure of the Basques to hand over the goods 
and passengers. 

The tenor of the German ultimata and the reprisals taken 
indicate clearly that the Reich did not recognize that the 
Spaniards possessed belligerent rights. Not enjoying such 
rights respecting German vessels on the high seas, the Ger- 
mans were quite within bonds in their demands and, failing 
to secure them, in taking such reprisals as seemed a quid pro 
quo for the tort committed. (N. J. Padelford, "Interna- 
tional Law and the Spanish Civil War," American Journal 
of International Law, April, 1937, pp. 237-239.) 

British policy in regard to attacks. — The British Govern- 
ment has made it abundantly clear that it does not regard the 
existence of civil war in Spain as conferring license upon any 
Spanish forces to interfere with British shipping on the high 
seas, and that it will not tolerate even such interference as 
the visiting of British ships in order to establish their charac- 
ter. Still less, of course, does it tolerate any more violent 
interference, and the British Navy has orders to afford pro- 
tection to all British shipping against attack upon unarmed 
merchantmen provided they are its own. It has persistently 
advanced the principle that international law no less than the 
dictates of humanity and civilization forbids such attacks 
even in time of war * * *. 

It is no justification of these crimes to plead that neither 
Spanish Government has acceded to the Proces-Verbal 
adopted by the rest of the world ; or that since they are not 
accorded the belligerent right of visit and search of merchant 
ships at sea, knowing that their enemies' ships are using false 


colors, they have no alternative but to attack at sight. A new 
government seeking recognition does not recommend itself to 
the world by flouting the principles adopted by the world, 
even on the plea that its rival has not formally adopted them ; 
and even the accordance of belligerent rights would not carry 
license to subject the ships even of the rival Government in 
its own country to the treatment inflicted of late upon all and 
sundry * * *. (London Times, August 18, 1937.) 

The observation scheme and visit and search. — 
In part (a) of Situation III the cruiser Fona of 
state F is functioning in a double capacity: it is 
a patrol ship under the Observation scheme and it 
is a national warship which has the duty to protect 
the commerce of state F. Though the Feran is vio- 
lating both the Non-Intervention scheme and the 
domestic law of state F, since it is carrying aircraft 
to state B, the Cape, the cruiser of the Commoners, 
possesses no rights of visit and search. Enforce- 
ment of the domestic legislation and of the special 
scheme by which the Feran is bound, is not the 
function of an insurgent warship whose actions 
must be controlled entirely by international law. 
As pointed out above, insurgent craft have none of 
the rights of belligerents at sea and any interfer- 
ence with the Feran is illegal. It is for the Fona 
to warn the master of the Feran that the latter is 
infringing upon the special rules, and it is the duty 
of the Fona to protect the Feran from any inter- 
nationally illegal molestation. A cruiser of the gov- 
ernment B since it is a w r arship of a recognized 
power, would have the right to approach the Feran 
(The Marianna Flora, 11 Wheaton, 1) but it would 
have no authority to visit and search, so that its 
rights would not differ greatly from those of the 

167533—40 9 


In part (c) the Gyra is violating no law, either 
domestic or international, and is engaged upon a 
perfectly lawful voyage. Oil is not a commodity 
which comes under the heading of "Arms, Ammuni- 
tion and Implements of War" and thus was not 
prohibited by the Non-intervention plan or by the 
domestic law of state G. The carrying of arms by 
the Gyra for the preservation of discipline was law- 
ful. (See Sec. 10 of the American law above.) 
Like the Cape in part (a) the Bain had no right to 
summon the Gyra to come to for visit and search. 
It is incumbent on the Geno, the cruiser of state G, 
to come to the Gyra's assistance and to drive off 
the Bain by force if necessary. The Geno would 
have no right, if it arrives too late to save the Gyra, 
to make a counter-attack upon the Bain, either 
under general international law or the special 
Geneva Arrangement. Warships summoned to aid 
merchant vessels are limited to the use of force for 
"preventive" purposes, not for punitive. Force 
"can never be exercised with a view to inflicting 
punishment. Retaliation for acts already commit- 
ted is not allowable." (United States Navy Regu- 
lations, Art. 723.) Where submarines were con- 
cerned, the Nyon accord permitted counter-attacks 
for purposes immediately punitive but ultimately 
preventive. Under the Geneva accord the cruiser 
of state H, if it actually witnessed the attack by 
the Bain, could intervene to protect the merchant 
vessel to the best of its ability. 

Resistance to illegal visit and search. — Even if 
there had been belligerency the Bain would have 
had no right to sink the Gyra merely because the 
latter resisted visit and search. If a summoned 


vessel resists or takes to flight it may be pursued 
and brought to by forcible means if necessary. 

The United States regarded resistance or flight as ground 
for using force sufficient to cause the merchant vessel to lie 
^ * * * j^ no f- a g rounc ] for sinking the vessel. Of 
course the * * * vessel might be sunk in the exercise of 
the right, but the use of force was held to be restricted to that 
necessary to bring the vessel to, and forcible resistance by 
the merchant vessel was not in itself a ground for sinking (it) 
but a just ground for its condemnation. (Naval War College 
Situations, 1934, p. 50.) 

Section 4295 U. S. Revised Statutes : The commander and 
crew * * * may oppose and defend against any aggres- 
sion * * * by any armed vessel * * * not being a 
public armed vessel of some nation in amity with the United 

As the action of the Bain was entirely illegal, 
the Gyra had the right to resist, though such action 
in the face of overwhelming force may have been 
somewhat quixotic. Orders issued by the United 
States authorities enjoin resistance to illegal visit 
and search, even by a recognized government. 
(Naval War College Situation 1912, p. 27.) It is 
true that the arms on board the Gyra were there 
"for the preservation of discipline" and resistance 
to legal visit and search would have been un- 
justifiable, for the Gyra would then be an armed 
merchantman. In the light, however, of the prac- 
tice and orders concerning illegal interference, it 
seems reasonable to declare the Gyra's resistance a 
legal, though perhaps a foolish, act. 

Illegal attacks by submarine. — In part (b) the 
Iris with its cargo of barbed wire was breaking no 
domestic or international law. Any possible in- 
fraction of the Non-intervention scheme need not 
be considered because state I was not a party to 


that arrangement. The submarine acted illegally 
whether it encountered the Iris inside or outside 
the 3-mile limit. Within territorial waters a sub- 
marine, disclosing its identity, would have the right 
to stop the Iris and to direct it but in no circum- 
stances to destroy it. Outside the 3-mile limit a 
properly marked submarine of state B might ap- 
proach the 7m but it could not visit and search. it 
or order its destruction. Visit and search by the 
established government or by the rebels during 
insurgency is illegal. (Naval War College Sit- 
uation, 1912, pp. 21-24; 2 Moore, " International 
Arbitrations,' ' pp. 1021.) 

Even if the situation had been one of belliger- 
ency, the Iris could not legally have been ordered 
about in this fashion. The submarine should have 
shown its flag and should have visited and searched 
the Iris before ordering destruction. According 
to the London rules of 1930 there could be no 
destruction of the merchant ship, even if the lives 
of those on board were saved, unless the ship had 
been captured, and then it could have been de- 
stroyed only if taking it into a port would have 
involved danger to the submarine and if the ship's 
papers had been placed in safety. (See also Arts. 
49 and 50 of the Declaration of London, 1909.) 

Thus on every count the submarine was guilty of 
unlawful action. The Nyon arrangement was de- 
signed to meet just such a situation as this, and 
though the ship's personnel was given a chance 
for safety, the submarine was attacking "in a man- 
ner contrary to the rules of international law 
referred to" in the London Treaty of 1930 and the 
Protocol of 1936. Whereas normally the Iona 


would have the right to employ only preventive 
force to protect the Iris, as a warship of a state 
signatory to the Nyon treaty it may use force be- 
yond that which is actually needed to save the Iris 
and may counter-attack the submarine. This was 
the special grant of authority in the Nyon conven- 
tion which was drafted with a view to halting 
attacks made in an illegal manner, attacks per- 
formed by legal methods being left subject to the 
general rules which permit preventive force by the 
protecting warship of a merchant vessel's own 
state. The cruiser of State H likewise should in- 
tervene to attack the submarine. A submarine of 
the Commoners or of state D acting in similar 
illegal fashion would be subject to the same drastic 

What constitutes an "attack." — No actual firing 
of a projectile or sinking of a ship has to take place 
for an act or a series of acts to constitute an " at- 
tack." In this instance it is not necessary to 
wait until the torpedo is launched before the sub- 
marine can be considered to have attacked the Iris. 
The word " attack" covers more than the mere em- 
ployment of force. To reason otherwise would 
be to go counter to all the dictates of law and com- 
mon sense. A threat can be an attack just as well 
as the carrying out of that threat, and the notice 
to the Iris in this case may be likened to an " as- 
sault" in domestic law. 

It is not essential in order to constitute a wrong that the 
wrongdoer shall have fully carried out his intention nor that 
any actual damage shall result * * * (he is) liable if 
his conduct was such as reasonably created in the plaintive 
the belief that such ability and intent existed. (A. B. Hall, 
"Elementary Law Manual," p. 52.)' 


Resume. — In times of civil strife when there is 
no recognition of belligerency, the merchant ships 
of third states are not subject to visit and search 
on the high seas and it is the duty of war vessels 
of those states to protect their nations' merchant 
shipping from interference. Within territorial 
waters a parent state, in cases of insurgency, may 
close a port provided it does so " effectively," and 
the rebels too within the 3-mile limit may prevent 
supplies from reaching their domestic adversaries. 
These are the rules for the usual instances of in- 
surgency. In particular cases, like that of Spain 
recently, and that of state B in Situation III, for- 
eign powers may adopt special measures like those 
of Non-intervention, the American legislation on 
civil strife, and the Nyon and Geneva arrange- 
ments. Such actions, however, are based not upon 
international law, but upon consideration of poli- 
tics and expediency at the moment. In this situa- 
tion, therefore, the cruisers Fona, lona, and Geno 
are obligated to employ force against the cruisers 
and submarines which are making unwarranted 
attacks upon innocent (at least insofar as interna- 
tional law is concerned) merchant ships. Special 
rights attach to the cruisers of I and H under the 
Geneva and Nyon Conventions, and the cruisers 
of F and G, in addition to protecting ships of their 
fellow nationals, have special duties under the Non- 
intervention scheme of Observation. The rules 
of the usual law and the stipulations of these new 
and unique conventions combine to form the basis 
for the solution. 

SOLUTION / f 127 


(a) The Fona should notify the Feran that it 
is coming to its aid to protect it against an illegal 
act. The Fona also should notify the Cape that 
the latter has no right to interfere with the Feran 
and should threaten the use of force against the 
Cape if it refuses to desist. The rights would be 
the same if the summons had been by a cruiser of 
state B. 

(&) The Iona should notify the Iris to try to 
escape and should notify the submarine that it has 
no rights in this situation and that force will be 
used against it for the protection of the Iris. If 
the Iona arrives before the Iris is actually attacked 
it should drive off the submarine by force, and if 
it reaches the place of attack too late to save the 
Iris, it should counter-attack the submarine. The 
rights would be the same if the submarine had been 
under the flag of the Commoners or that of state D. 

(c) The Geno should notify the Gyra to cease 
its resistance and should notify the Bain that the 
latter has no right either to visit and search or to 
sink the Gyra and should threaten force to compel 
it to desist. The rights would be the same if the 
summons was by a cruiser of the Commoners. 

The cruiser of state H should take no action in 
the case of the Feran. In the case of the Iris, it 
may intervene and may counter-attack and de- 
stroy the submarine. In the case of the Gyra, if 
it witnessed the attack, it may intervene to protect 
the Gyra but has no authority to counter-attack 
or destroy the Bain. 






[Press Releases, Vol. 17, Nos. 429 and 430] 

The Secretary of State last night (Dec. 12, 1937) sent 
a preliminary instruction to the American Ambassador to 
Japan, Mr. Joseph C. Grew. The preliminary instruction 
read as follows: 

"Telegrams from Hankow indicate that yesterday and 
today American and British naval and merchant vessels 
at various points on Yangtze above Nanking were repeat- 
edly fired on and bombed. A Japanese source is reported 
to have stated at Wuhu that Japanese military forces have 
orders to fire on all ships on the Yangtze. Today the 
U. S. S. Panay and three Standard Oil steamers at point 
twenty-seven miles above Nanking are reported bombed 
and sunk and survivors — including Embassy personnel, 
Navy personnel and some refugees — are now at Hohsien. 
Please immediately inform Foreign Minister Hirota, ask 
for information, and request that Japanese Government 
immediately take appropriate action. Impress upon him 
the gravity of the situation and the imperative need to take 
every precaution against further attacks on American 
vessels or personnel. 

"When we have further particulars I shall give you 
further instruction." 

Ambassador Joseph C. Grew today reported to the Secre- 
tary of State from Tokyo, as follows: 

"The Minister for Foreign Affairs has just called on me in 
person at the Chancery and has informed me of the receipt 
of a Domei report from Shanghai that in following fleeing 
remnants of the Chinese army Japanese planes had bombed 
three Standard Oil vessels and had sunk the U. S. S. Panay 



while in the close vicinity on the Yangtze above Nanking. 
The Minister said that he had as yet received no official 
report but that he had come immediately to express to our 
Government the profound apology of the Japanese Govern- 
ment and that Ambassador Saito would do the same to you. 
He said that Admiral Hasegawa had accepted full responsi- 
bility for the accident. He said that immediately after my 
visit this morning he had communicated my representations- 
to the Japanese naval and military authorities. Hirota said 
'I cannot possibly express how badly we feel about this.' 
The Navy and War Ministers have sent similar expressions 
of regret to the Navy and War Departments in Washington 
through the Naval and Military Attaches here." 

When the Secretary of State saw the President today just 
prior to his meeting with the Japanese Ambassador, at the 
Department of State, the President gave Secretary Hull the 
following memorandum: 

"The White House, Washington, 

"Memorandum Handed to the Secretary of State at 12 : 30 
p. m., December 13, 1937 

"Please tell the Japanese Ambassador when you see him 
at one o'clock : 

"1. That the President is deeply shocked and concerned 
by the news of indiscriminate bombing of American and 
other non-Chinese vessels on the Yangtze, and that he re- 
quests that the Emperor be so advised. 

"2. That all the facts are being assembled and will shortly 
be presented to the Japanese Government. 

"3. That in the meantime it is hoped the Japanese Gov- 
ernment will be considering definitely for presentation to 
this Government: 

"a. Full expressions of regret and proffer of full com- 
pensation : 

"6. Methods guaranteeing against a repetition of any 
similar attack in the future. 

"F. D. R." 


Secretary Hull informed Ambassador Saito of this instruc- 
tion from the White House at 1 o'clock, December 13, 1937. 

The Japanese Ambassador called upon the Secretary of 
State at 1 o'clock this afternoon. He informed the Secretary 
that the Foreign Minister of Japan, before receiving official 
reports concerning the bombing and sinking of the U. S. S. 
Panay, called upon Ambassador Grew in Tokyo and offered 

The Japanese Foreign Minister had instructed Ambassa- 
dor Saito that reports were to be given to the Secretary of 
State. The Ambassador was also instructed to extend full 
regrets and apologies which he came to the Secretary to do. 

The Ambassador added that the American authorities had 
informed the Japanese authorities of the position of the 
American vessels and that therefore the bombing was a very 
grave blunder. 

The Ambassador said further that the Japanese author- 
ities were trying to furnish relief to the survivors at 
Hohsien, but that the place is one where Chinese and Japan- 
ese troops are fighting and that it was a difficult matter to 
get relief to them. 

The Secretary of State last night instructed the American 
Ambassador to Japan, Mr. Joseph C. Grew, to communi- 
cate to the Minister for Foreign Affairs of Japan ithe 
following note : 

"The Government and people of the United States have 
been deeply shocked by the facts of the bombardment and 
sinking of the U. S. S. Panay and the sinking or burning 
of the American steamers Meiping, Meian and Meisian by 
Japanese aircraft. 

"The essential facts are that these American vessels were 
in the Yangtze River by uncontested and incontestable right ; 
that they were flying the American flag; that they were 
engaged in their legitimate and appropriate business; that 
they were at the moment conveying American official and 
private personnel away from points where danger had de- 
veloped ; that they had several times changed their position, 
moving upriver, in order to avoid danger; and that they 


were attacked by Japanese bombing planes. With regard 
to the attack, a responsible Japanese naval officer at 
Shanghai has informed the Commander-in-Chief of the 
American Asiatic Fleet that the four vessels were proceed- 
ing upriver; that a Japanese plane endeavored to ascertain 
their nationality, flying at an altitude of three hundred 
meters, but was unable to distinguish the flags; that three 
Japanese bombing planes, six Japanese fighting planes, six 
Japanese bombing planes, and two Japanese bombing planes, 
in sequence, made attacks which resulted in the damaging of 
one of the American steamers, and the sinking of the U. S. S. 
Panay and the other two steamers. 

"Since the beginning of the present unfortunate hostilities 
between Japan and China, the Japanese Government and 
various Japanese authorities at various points have re- 
peatedly assured the Government and authorities of the 
United States that it is the intention and purpose of the 
Japanese Government and the Japanese armed forces to 
respect fully the rights and interests of other powers. On 
several occasions, however, acts of Japanese armed forces 
have violated the rights of the United States, have seriously 
endangered the lives of American nationals, and have 
destroyed American property. In several instances, the 
Japanese Government has admitted the facts, has expressed 
regrets, and has given assurance that every precaution will 
be taken against recurrence of such incidents. In the present 
case, acts of Japanese armed forces have taken place in 
complete disregard of American rights, have taken Ameri- 
can life, and have destroyed American property both public 
and private. 

"In these circumstances, the Government of the United 
States requests and expects of the Japanese Government a 
formally recorded expression of regret, an undertaking to 
make complete and comprehensive indemnifications; and an 
assurance that definite and specific steps have been taken 
which will ensure that hereafter American nationals, inter- 
ests and property in China will not be subjected to attack 
by Japanese armed forces or unlawful interference by any 
Japanese authorities or forces whatsoever." 


Following is the text of a note handed to the American 
Ambassador to Japan, Mr. Joseph C. Grew, by the Japanese 
Minister for Foreign Affairs on December 24, 1937 : 

"December 24, 1937, 
"Monsieur L'Ambassadeur, 

"Regarding the unfortunate incident occurring on the 
Yangtze River about twenty-six miles above Nanking on 
the 12th instant, in which Japanese naval aircraft attacked 
by mistake the U. S. S. Panay and three merchant ships be- 
longing to the Standard Oil Company of America, causing 
them to sink or burn with the result that there were caused 
casualties among those on board, I had the honor previously 
to send to Your Excellency my note dated the fourteenth 
of December. Almost simultaneously, however, I received 
Your Excellency's note No. 838, which was sent by the direc- 
tion of the Government of the United States, and which, 
after describing the circumstances prior to the occurrence of 
the incident, concludes that the acts of the Japanese forces 
in the attack were carried out in complete disregard of the 
rights of the United States, taking American life and de- 
stroying American property, both public and private; and 
which states that, 'in these circumstances, the Government 
of the United States requests and expects of the Japanese 
Government a formally recorded expression of regret, and 
an undertaking to make complete and comprehensive in- 
demnifications, and an assurance that definite and specific 
steps have been taken which will ensure that hereafter 
American nationals, interests, and property in China will 
not be subjected to attack by Japanese armed forces or 
unlawful interference by any Japanese authorities or forces 

"As regards the circumstances surrounding the present 
unfortunate incident, I desire to state that while it is con- 
cluded in Your Excellency's note that the incident resulted 
from disregard of American rights by Japanese armed 
forces, it was entirely due to a mistake, as has been described 
in my note above-mentioned. As a result of the thorough 
investigations which have been continued since then in all 
possible ways to find out the real causes, it has now been 


fully established that the attack was entirely unintentional. 
I trust that this has been made quite clear to Your Excel- 
lency through the detailed explanations made to Your Ex- 
cellency on the 23rd instant by our naval and military 

"With reference to the first two items of the requests men- 
tioned in Your Excellency's note, namely, a recorded ex- 
pression of regret, and indemnifications, no word needs to be 
added to what I have said in my afore-mentioned note. As 
regards the guarantee for the future, I wish to inform Your 
Excellency that the Japanese Navy issued without delay 
strict orders to 'exercise the greatest caution in every area 
where warships and other vessels of America or any other 
third power are present, in order to avoid a recurrence of a 
similar mistake, even at the sacrifice of a strategic advantage 
in attacking the Chinese troops.' Furthermore, rigid or- 
ders have been issued to the Military, Naval, and Foreign 
Office authorities to pay, in the light of the present untoward 
incident, greater attention than hitherto to observance of 
the instructions that have been repeatedly given against in- 
fringement of, or unwarranted interference with, the rights 
and interests of the United States and other third powers. 
And the Japanese Government are studying carefully every 
possible means of achieving more effectively the above - 
stated aims, while they have already taken steps to ascertain, 
in still closer contact with American authorities in China, 
the whereabouts of American interests and nationals, and to 
improve the means of communicating intelligence thereof 
speedily and effectively to the authorities on the spot. 

"Although the attack on the man-of-war and other vessels 
of the United States was due to a mistake as has been stated 
above, the Commander of the flying force concerned was 
immediately removed from his post, and recalled, on the 
grounds of a failure to take the fullest measures of precau- 
tion. Moreover, the staff members of the fleet and the com- 
mander of the flying squadron and all others responsible 
have been duly dealt with according to law. The Japanese 
Government are thus endeavoring to preclude absolutely all 
possibility of the recurrence of incidents of a similar char- 
acter. It needs hardly be emphasized that, of all the above- 
mentioned measures taken by the Japanese Government, the 


recall of the commander of the flying force has a significance 
of special importance. It is my fervent hope that the fact 
will be fully appreciated by the Government of the United 
-States that this drastic step has been taken solely because 
of the sincere desire of the Japanese Government to safe- 
guard the rights and interests of the United States and other 
third powers. 
"I avail [etc.]. 

"Koki Hirota." 

The Secretary of State today instructed the American 
Ambassador to Japan, Mr. Joseph C. Grew, to communicate 
the following note to the Minister for Foreign Affairs : 

"The Government of the United States refers to its note 
of December 14, the Japanese Government's note of Decem- 
ber 14 and the Japanese Government's note of December 24 
in regard to the attack by Japanese armed forces upon the 
U. S. S. Patnay and three American merchant ships. 

"In this Government's note of December 14 it was stated 
that 'the Government of the United States requests and ex- 
pects of the Japanese Government a formally recorded ex- 
pression of regret, an undertaking to make complete and 
comprehensive indemnifications; and an assurance that 
definite and specific steps have been taken which will ensure 
that hereafter American nationals, interests and property in 
China will not be subjected to attack by Japanese armed 
forces or unlawful interference by any Japanese authorities 
or forces whatsoever.' 

"In regard to the first two items of the request made by 
the Government of the United States, the Japanese Gov- 
ernment's note of December 24 reaffirms statements made 
in the Japanese Government's note of December 14 which 
read 'the Japanese Government regret most profoundly that 
it (the present incident) has caused damages to the United 
States' man-of-war and ships and casualties among those 
on board, and desire to present hereby sincere apologies. 
The Japanese Government will make indemnifications for 
all the losses and will deal appropriately with those respon- 
sible for the incident.' In regard to the third item of the 
request made by the Government of the United States, the 


Japanese Government's note of December 24 recites certain 
definite and specific steps which the Japanese Government 
has taken to ensure, in words of that note, 'against infringe- 
ment of, or unwarranted interference with, the rights and 
interests of the United States and other third powers' and 
states that 'The Japanese Government are thus endeavoring 
to preclude absolutely all possibility of the recurrence of 
incidents of a similar character.' 

"The Government of the United States observed with 
satisfaction the promptness with which the Japanese Gov- 
ernment in its note of December 14 admitted responsibility, 
expressed regret, and offered amends. 

"The Government of the United States regards the Jap- 
anese Government's account, as set forth in the Japanese 
Government's note of December 24, of action taken by it 
as responsive to the request made by the Government of 
the United States in this Government's note of December 14. 

"With regard to the facts of the origins, causes and cir- 
cumstances of the incident, the Japanese Government indi- 
cates in its note of December 24 the conclusion at which 
the Japanese Government, as a result of its investigation, 
has arrived. With regard to these same matters, the Gov- 
ernment of the United States relies on the report of findings 
of the Court of Inquiry of the United States Navy, a copy 
of which has been communicated officially to the Japanese 

"It is the earnest hope of the Government of the United 
States that the steps which the Japanese Government has 
taken will prove effective toward preventing any further 
attacks upon or unlawful interference by Japanese authori- 
ties or forces with American nationals, interests or property 
in China." 

Following is a report received by the Secretary of the 
Navy from the commanding officer of the U. S. S. Panay, 
Lt. Comdr. J. J. Hughes, United States Navy: 

"On Sunday, December 12, 1937, the U. S. S. Panay was 
operating under the orders of the commander, Yangtze 
patrol, and at that time was anchored about 15 miles above 
Xanking acting as a refuge for American citizens and mem- 


bers of the American Embassy. The ship was accompanied 
by the American merchant ships Meiping, Meishia, Meian, 
and miscellaneous launches and junks. The latest orders 
from the commander of the Yangtze patrol to the com- 
manding officer had been received the day before by despatch 
and said the commanding officer was to have complete dis- 
cretion in moving the ship up or down the river. 

"The ship was identified as an American vessel by two 
large horizontal flags, one spread over the forward top 
deck and one over the after top deck, both clearly visible 
from the air at any angle. Each of these flags measured 
about 18 feet in length and about 14 feet in width and had 
been freshly repainted. In addition to these two flags and 
on account of the emergency condition existing, the Panay 
had been flying her largest size ensign at the gaff both 
day and night whether underway or at anchor. All ensigns 
both horizontal and vertical were brightly illuminated all 

"At 8 : 14 a. m., I observed artillery shells falling in the 
river about 400 yards off our starboard beam presumably 
from Japanese artillery although the batteries were not 
visible. At 8 : 25 a. m., I got the Panay underway for up- 
river to get clear of this firing and signalled the convoy to 
follow at 8 : 43 a. m. 

"At 9 : 40 a. m. having resumed our journey with the 
Panay at the head of the column, followed in the order 
named by the Meiping, Meishia, and Meian, two groups of 
Japanese soldiers were sighted on the left (north) bank. 
They waved hand flags at the Panay and seemed to want 
to communicate with us. Accordingly the Panay hove to 
and a Japanese armed tender came alongside carrying Lt. 
Sheseyo Murakami and about 90 men, most of whom were 
armed with machine guns. Lieutenant Anders, my execu- 
tive officer, met this officer at the gangway as he stepped 
on board accompanied by his sword bearer and two pri- 
vates with fixed bayonets. Lieutenant Anders informed me 
that the officer desired to speak to me so I turned the conn 
over to Lieutenant Anders and went to the gangway. 

Lieutenant Murakami asked me where the Panay was 
going and I said to a point upriver 28 miles from Nanking. 

167533—40 10 


He said 'Why are you going there,' to which I replied 'To 
keep clear of artillery fire.' He asked me about the three 
merchant ships and I informed him that they were Amer- 
ican ships under my protection. His next question was 
about the Chinese troops holding solidly to which I said 
that the United States was friendly to both Japan and 
China and therefore I could not give him any information 
about the Chinese Army. This conversation was witnessed 
by Second Secretary, Mr. George Atcheson, Jr., of the 
American Embassy, Nanking, China. Lieutenant Mura- 
kami then invited me to repay his call ashore, which invita- 
tion I respectfully declined. At 9 : 53 a. m. the Japanese 
tender cleared the side. 

"At 9 : 54 a. m. the Panay again resumed her way up the 
river. At 11 a. m. I anchored the Panay at a point 20 
miles up river from Nanking and about 221 miles above 
Woosung in a broad open space in the river. My reason 
for anchoring there was simply to keep out of the way of 
the contending armies. This location seemed highly desir- 
able. We were easily visible, especially accompanied as we 
were by three merchant ships, for miles around on every 
side. It seemed unlikely that any troops would try to cross 
the river in our vicinity. In selecting this spot I had in 
mind primarily the safety of the Panay and the refugees 
whom she was carrying, but also the safety and well-being 
of the American ships in the convoy and their personnel. 
Immediately upon anchoring I posted sentry lookouts for 
airplanes and troop movements. At 1 p. m. I allowed a 
party of about eight men to visit the Meiping nearby. 
These men were still on board the Meiping when the attack 
started and were therefore unable to return to the ship. 

"At about 1 : 27 p. m. the lookout called down that two 
planes were in sight, altitude about 4,000 feet. The weather 
was clear with good visibility and no wind. The planes 
were clearly visible in spite of their altitude which may not 
have been as high as reported to me at that time. I had no 
idea whatsoever that the planes intended to attack us. 
About this time I went up to the bridge with Chief Quar- 
termaster John Lang in order to keep a better lookout for 
further plane approaches. About 1 : 29 p. m. I looked out 
the door of the bridge to pick up again the two planes I 


had originally seen and was astonished to discover that both 
were rapidly losing altitude in a direction toward us. Al- 
most immediately they appeared to go into power dives. 
Almost immediately a bomb seemed to strike directly over 
our heads ripping a big hole in the roof of the bridge. I 
lost consciousness for what must have been only a minute or 
two ; when I came to I discovered myself on the deck of the 
bridge badly stunned with my head covered with blood and 
my right leg painfully injured at the hip, making it impos- 
sible for me to rise to my feet. A hole had also been broken 
in the deck of the bridge near where Lang and I had been 
standing. I asked Lang if he were injured to which he 
replied 'No, sir.' Not being able to determine the extent of 
the damage from the inside of the bridge which was com- 
pletely wrecked he helped me down to the ship's galley 
which is on the main deck, and a good central point from 
which to direct operations. Before I was able to reach the 
galley, which was necessarily a slow process on account of 
my disabling wound, I heard the Panatfs machine guns 
firing and realized that the crew was carrying on probably 
under the immediate direction of Lieutenant Anders, my 
•executive officer. At the galley I sent Lang to notify all 
officers that I was in the galley incapacitated and to tell the 
engineer officer, Lieutenant (j. g.) Geist to let me know if 
we were taking water and if we could get the ship 

"From then on the planes bombed us continuously until 
about 2 : 25 p. m. They appeared to be attacking us in re- 
lays of two or three each. The first group that came over 
dive-bombed from a considerable altitude which kept them 
beyond the range of our Lewis machine guns. Later when 
the Panay was visibly smashed up they came much closer 
:and not only let go their bombs from low altitudes of per- 
haps one or two hundred feet, but also machine-gunned our 
decks firing as they came down diving. I distinctly heard 
their guns which had a different sound from the Panay's. 
I was informed at the time that the planes were Japanese 
Navy planes identified by their characteristic red circle. 
According to my reckoning the Panay must have received 
about 24 direct hits. I could not believe it was possible for 
such a small ship to receive such damage and still float. I 


was informed later that the first bomb which disabled me 
also put the forward 3-inch gun and the radio room out of 
action and brought down the foremast. 

"At 1 : 58 p. m. the ship appeared to be settling quite fast ; 
meanwhile, before the engineer officer could reach me to 
give me a report on the status of our propelling machinery, 
I heard a sharp rush of steam escaping from our steaming 
boiler. The engineer officer, Lieutenant Geist, reported 
shortly thereafter and said we could not get underway be- 
cause the steaming boiler had been ruptured. About this 
time someone informed me that we appeared to be in danger 
of being run down by one of the merchant ships. I got 
Mr. Paxton to carry me to the door of the galley, and from 
what I could see I supposed that the vessel was attempt- 
ing to come alongside the Panay, probably to take off our 
personnel. About that instant another storm of bombs fell 
both on the Panay and the merchant ship. The latter then 
abandoned her attempt to help the Panay. It should be 
remembered that attacking planes concentrated almost all 
their efforts on the Panay during at least the first half hour. 

"By 2 p. m. it seemed unlikely to me that I should be able 
to save the ship. About 2 : 02 p. m. Ensign Biwerse re- 
turned and said he thought we should abandon ship, es- 
pecially as he thought the job would take some time with 
only two small boats. Accordingly, I gave the order to 
abandon ship, and to start by sending the worst wounded 
ashore first. Boats contained only wounded except for the 
boats' crews, Chief Boatswain's Mate Mahlmann and sev- 
eral of the crew that had not been injured. They came to 
the galley to put me in the first boat. I protested against 
leaving the ship at this time, and was most unwilling to 
do so; but it appeared that they did not heed my protest 
because of my condition. With Mr. Paxton's assistance 
they carried me down to the deck, and laid me flat on my 
face across the bow of the motor sampan. 

"I told Ensign Biwerse to tell Lieutenant Anders and the 
other officers that if the attack should cease I wanted Ensign 
Biwerse to remain on board with a small detail of about 
six uninjured men to do what they would to keep the ship 
from going down and that in any case Ensign Biwerse and 
his detail were to be the last to leave. I knew at that time 


that Ensign Biwerse was the only uninjured officer although 
suffering from shock and had had most of his clothes blown 
off and believed that Lieutenant Anders and Lieutenant 
(]• g-) Geist were sufficiently injured to justify their leaving 
the ship before the last boatload. After arriving on shore 
I was informed both the motor sampan and pulling sampan 
had been machine-gunned by the attacking planes. Some 
time thereafter I heard the sound of a motor launch in the 
river close to where we were hidden in the reeds. The 
launch stayed in our vicinity a few minutes and then left. I 
cannot say whether or not they attempted to search for us 
because I was keeping my men out of sight and had delib- 
erately left no debris on the beach by which we could be 
traced. Shortly afterwards a second launch passed. 

"About this time the planes started bombing the mer- 
chant vessels. At 2 : 25 p. m. they ceased bombing the 
Panay altogether. It was while they were bombing the 
Panay that two of the merchant vessels were able to get 
underway and beach themselves. 

"With only two small boats available it took many return 
trips to take all the personnel off the ship. Starting at 2 : 05 
p. m. we completed the operations at a little after 3 p. m. 
Sometime before the ship sank I heard the rattle of machine 
guns and was informed that an armed Japanese boat was 
firing on the Panay. I was subsequently informed that this 
boat had put several men on board who remained only a 
few minutes and then left. I was shortly informed that the 
ship sank with her colors still flying at 3 : 54 p. m. turning 
over to starboard. 

"While on board the roar of the bomb explosions and the 
pieces of debris flying around made it impossible to keep 
any written record of the various hits, the damage sustained, 
or the injury to personnel. 

"There was absolutely no panic. The orders I gave were 
carried out exactly. The ship had the normal Yangtze 
gunboat general quarters station bill. We had special de- 
tails for air defense which involved using only our machine 

"The hull had many holes when abandoned and was ship- 
ping water rather rapidly. It would have been impossible 
to get the ship underway to beach her because her steaming 


boiler had been ruptured. Lieutenant Anders, my executive- 
officer, with great courage and perseverance maintained the 
fire of all our machine guns although he had been badly 
wounded almost immediately in the throat, and later in the 
arm and both hands. He was able however, to keep his 
feet and maintained active charge. 

"As already mentioned, I had my men abandon ship in 
the order of the worst wounded. First, I sent the boats to 
the nearest land which was covered by high reeds. I told 
the men that after they reached the beach they were to get 
in shore and hide in the reeds without, however, getting too 
far separated. After getting all the men off the ship and 
on the beach we found two Japanese planes flying fairly 
low overhead apparently looking for the Panay survivors. 
The reeds, however, apparently afforded us sufficient cover 
to remain unseen. These planes subsequently departed but 
shortly later bombing attacks were made on the two mer- 
chant vessels which were by now beached on the bank op- 
posite us. The third merchant vessel had already been sunk 
by bombs. 

"We were on an island. Lt. Arthur F. Anders, my exec- 
utive officer, was by this time badly weakened from loss of 
blood and Lieutenant (j. g.) Geist was also badly wounded 
in the leg. Ensign Biwerse had escaped actual injury but 
was suffering somewhat from shock. I felt that under the 
circumstances of our urgent condition and position that I 
should utilize the experience and mature judgment of Capt. 
Frank N. Koberts, United States Army, the Assistant Mili- 
tary Attache to the American Embassy in China, who had 
come on board at Nanking. He had escaped injury and 
was most anxious as an officer to assist me in any way. His 
ability to speak Chinese was also a valuable factor. I there- 
fore appointed him as my immediate representative to take 
active physical charge under my direction and such orders 
as he gave were after consultation with me and by my au- 
thority and direction. I also acknowledge gratefully the 
kind and efficient assistance of Mr. Atcheson in the same 
way. It is my grateful duty to add that Captain Koberts' 
services were absolutely invaluable and it is impossible for 
me to express my full appreciation of them. I am sure that 
every member of the party would agree that his efficiency,. 


kindness, and tact, and his experience in handling an opera- 
tion of this nature on shore greatly contributed to our final 
escape. Mr. Atcheson, who also speaks Chinese, agreed at 
my request to remain with the party to facilitate dealings 
with Chinese officials. 

"At about 5 : 15 p. m. Second Secretary of the Embassy 
Mr. J. Hall Paxton, who also speaks Chinese, left our party 
at my request to try to get a message through either by 
telephone or telegraph to the American Ambassador at Han- 
kow, informing him of our plight. 

"As already mentioned, after dark all able-bodied men 
tracked the launch carrying the wounded around the little 
island close to the mainland on which we had found our- 
selves. In the meantime Mr. Paxton who had gone on 
ahead sent back coolie carriers from the first village and 
they carried our wounded there. At this village we en- 
gaged more coolies and set out for the next village inland, 
Hohsien, which was 5 miles away and 3 miles away from 
the river bank. When we arrived at Hohsien about mid- 
night we were received and treated with the greatest kind- 
ness by the magistrate and all the Chinese there and were 
quartered in the hospital where we remained throughout 
the daylight. On Monday, 13 December, Ensminger, store- 
keeper 1st class, and Mr. Sandro Sandri, Italian journalist, 
died from their injuries while we were there. 

"At dark that evening, 13 December, we set out for the 
next town, Hanshan, by junks which Captain Roberts had 
engaged. It was while we were at Hanshan, approximately 
12 miles inland from the left (north) bank, that I received 
word of the American and British gunboats which had been 
sent to assist us and of the presence of a Japanese gunboat 
to guarantee us safety from further attacks. The magis- 
trate and the Chinese residents of the second village were 
just as helpful as those of the first. Finding the party and 
rendering medical aid, they were willing to have us in spite 
of the fact that they thought as we did that our presence 
among them would draw down bombing attacks from the 
Japanese planes. 

"We left Hanshan about noon on 14 December in the same 
junks in which we had arrived and reached the Yangtze 
river about 9 : 45 p. m. that night. The entire party was on 


board the U. S. S. Oahu and H. M. S. Ladybird by 1 a. m. 
December 15. All the passengers who were on board the 
Panay were there at their own request. 

"I have no complaint to make regarding the conduct of 
any officer or enlisted man or any passenger. In my opin- 
ion everyone acted with fine courage and initiative. I con- 
sider that the action of my officers and crew in attempting 
to return the fire, rendering first aid, safely evacuating all 
personnel, transporting the wounded, keeping together and 
returning as one party with the dead and wounded is suf- 
ficient evidence of their courage, discipline, and fortitude. 
I keenly regret that my own injury prevented me from ob- 
serving individual acts of courageous conduct of which I 
feel certain, under the circumstances, every officer and man 
performed both while on board ship and during the sub- 
sequent traveling ashore. I was particularly impressed by 
and grateful for the high morale and cheerful and faithful 
manner in which my officers and men assisted one another. 
I deem it my duty however to comment particularly upon 
the cool and courageous conduct of Lt. Arthur F. Anders, 
my executive officer, who though wounded in several places, 
unable to speak and suffering severe loss of blood, kept his 
feet, directed the fire and supervised the abandon ship. His 
conduct was an inspiration to all hands. I also consider 
that Lt. Clark G. Grazier, Medical Corps, United States 
Navy, our only doctor, who was fortunately not wounded, 
displayed coolness, ability and resourcefulness with his treat- 
ment of the many wounded both while under fire aboard 
ship and under very difficult conditions ashore. His untir- 
ing efforts and professional skill undoubtedly contributed 
greatly to reduce the seriousness of the injuries." 

Following is the text of the report of findings of the 
Court of Inquiry ordered to investigate the bombing and 
sinking of the U. S. S. Panay. The Secretary of the Navy 
announced that these findings have been approved by the 
Commander-in-Chief of the Asiatic Fleet : 

"The Court finds as follows: 1. That on December 12, 
1937, the U. S. S. Panay, a unit of the Yangtze patrol of the 
United States Asiatic Fleet, was operating under lawful 
orders on the Yangtze River. 


"2. That the immediate mission of the U. S. S. Panay 
was to protect nationals, maintain communication between 
the United States Embassy, Nanking, and office of the Am- 
bassador at Hankow, provide a temporary office for the 
United States Embassy staff during the time when Nanking 
was greatly endangered by military operations, and to afford 
a refuge for American and other foreign nationals. 

"3. That due to intensive shell fire around Nanking the 
U. S. S. Panay had changed berth several times to avoid 
being hit, and on the morning of December 12, 1937, formed 
a convoy of Socony Vacuum Oil Co. vessels principally the 
S. S. Meiping, Meishia and Meian and proceeded up river. 

"4. That adequate steps were taken at all times to assure 
that the Japanese authorities were informed of the move- 
ments of the U. S. S. Panay. 

"5. That in addition to her regular complement the U. S. 
S. Panay had on board at this time four members of the 
American Embassy staff, four American nationals and five 
foreign nationals. 

"6. That at 9 : 40 a. m. while standing upriver the U. S. S. 
Panay stopped in response to a signal from a Japanese 
landing boat, a Japanese Army boarding officer with guard 
went on board and was informed that the U. S. S. Panay 
and convoy were proceeding to anchorage 28 miles above 
Nanking, no warning was given of any danger likely to be 

"7. That at about 11 a. m., December 12, 1937, the U. S. S. 
Panay and convoy anchored in the Yangtze River in a com- 
pact group at about mileage 221 above Woosung, 28 miles 
above Nanking. 

"8. That the U. S. S. Panay was painted white with buff 
upper works and stacks and displayed two large horizontal 
flags on her upper deck awnings plus large colors at her 

"9. That the Socony Vacuum ships Meiping, Meishia and 
Meian each displayed numerous horizontal and vertical 
American flags all of large size. 

"10. That at 1 : 30 the crew of the U. S. S. Panay were 
engaged in normal Sunday routine and were all on board 


except a visiting party of eight men on board the S. S. 

"11. That at about 1 : 38 p. m. three large Japanese twin- 
motored planes in a vee formation were observed at a con- 
siderable height passing overhead down river, at this time 
no other craft were in the near vicinity of the Panay and 
convoy and there was no reason to believe the ships were in 
a dangerous area. 

"12. That without warning these three Japanese planes 
released several bombs one or two of which struck on or 
very close to the bow of the U. S. S. Panay and another 
which struck on or very close to the S. S. Meiping. 

"13. That the bombs of the first attack did considerable 
damage to the U. S. S. Panay disabling the forward 3-inch 
gun, seriously injuring the captain and others, wrecking 
the pilot house and sick bay, disabling the radio equipment, 
and the steaming fireroom so that all power was lost and 
causing leaks in the hull, which resulted in the ship settling 
down by the head and listing to starboard, thereby contrib- 
uting fundamentally to the sinking of the ship. 

"14. That immediately thereafter a group of six single- 
engined planes attacked from ahead diving singly and ap- 
pearing to concentrate on the U. S. S. Panay. A total of 
about 20 bombs were dropped, many striking close aboard 
and creating by fragments and concussions great damage to 
the ship and personnel. These attacks lasted about 20 min- 
utes during which time at least two of the planes attacked 
also with machine guns, one machine-gun attack was di- 
rected against a ship's boat bearing wounded ashore causing 
several further wounds and piercing the boat with bullets. 

"15. That during the entire attack the weather was clear 
with high visibility and little if any wind. 

"16. That the planes participating in the attacks on the 
U. S. S. Panay and its convoy were unmistakingly identified 
by their markings as being Japanese. 

"17. That immediately after the first bomb struck, air- 
defense stations were manned and the 30-caliber machine- 
gun battery opened fire and engaged the attacking planes 
throughout the remainder of the attack. The 3-inch battery 


was not manned nor were any 3-inch shells fired at any time, 
this was in accordance with the ship's air-defense bill. 

"18. That during the bombing many were injured by fly- 
ing fragments and concussion and all suffered shock on the 
first bomb. The Captain suffered a broken hip and severe 
shock, soon thereafter Lieutenant Anders, executive officer, 
was wounded by fragments in throat and hands losing 
power of speech, Lieutenant, Junior Grade, Geist, engineer 
officer, received fragments in the legs, Ensign Biwerse had 
clothing blown off and was severely shocked, this included 
all the line officers of the ship, the Captain being disabled, 
the executive officer carried on his duties giving orders in 
writing. He issued instructions to get underway and to 
beach the ship. Extensive damage prevented getting 

"19. That at about 2 p. m., believing it impossible to save 
the ship and considering the number of wounded and the 
length of time necessary to transfer them ashore in two 
small boats, the Captain ordered the ship to be abandoned, 
this was completed by about 3 p. m. By this time the main 
•deck was awash and the Panay appeared to be sinking. 

"20. All severely wounded were transferred ashore in the 
first trips, the Captain protested in his own case. The ex- 
ecutive officer when no longer able to carry on due to wounds 
left the ship on the next to last trip and Ensign Biwerse 
remained until the last trip. 

"21. That after the Panay had been abandoned, Mahl- 
mann, chief boatswain's mate and Weimers, machinist's 
mate first class, returned to the Panay in one of the ship's 
boats to obtain stores and medical supplies. While they 
were returning to the beach a Japanese power boat filled 
with armed Japanese soldiers approached close to the Panay, 
opened fire with a machine gun, went alongside, boarded and 
left within 5 minutes. 

"22. That at 3 : 54 p. m. the Panay, shortly after the Japa- 
nese boarding party had left, rolled over to the starboard 
and sank in from 7 to 10 fathoms of water, approximate 
latitude, 30°44'30" north, longitude 117°27' east. Prac- 
tically no valuable Government property was salvaged. 


"23. That after the Panay survivors had reached the left 
bank of the river the Captain, in view of his own injuries 
and the injuries and shock sustained by his remaining line 
officers and the general feeling that attempts would be made 
to exterminate the survivors, requested Capt. F. X. Roberts, 
United States Army, who was not injured and who was 
familiar with land operations and the Chinese language, to 
act under his directions as his immediate representative. 
Captain Roberts functioned in this capacity until the return 
of the Panay survivors on board the U. S. S. Oahu on 
December 15, 1937, performing outstanding service. 

"24. That Messrs. Atcheson and Paxton of the United 
States Embassy staff rendered highly valuable services on 
shore where their knowledge of the country and language, 
coupled with their resourcefulness and sound advice, con- 
tributed largely to the safety of the party. 

"25. That after some 50 hours ashore, during which time 
the entire party suffered much hardship and exposure some- 
what mitigated by the kindly assistance of the Chinese, they 
returned and boarded the U. S. S. Oahu and H. M. S. Lady- 

"26. That from the beginning of an unprecedented and 
unlooked for attack of great violence until their final return, 
the ship's company and passengers of the U. S. S. Panay 
were subjected to grave danger and continuous hardship, 
their action under these conditions was in keeping with the 
best traditions of the naval service. 

"27. That among the Panay passengers, Mr. Sandro 
Sandri died of his injuries at 1 : 30, December 13, Messrs. 
J. Hall Paxton, Emile Gassie and Roy Squires were 

"28. That early in the bombing attacks the Standard Oil 
vessels got under way. Meiping and Meishia secured to a 
pontoon at the Kiayuan wharf, the Meian was disabled and 
beached further down river on the left bank. All these 
ships received injuries during the first phases of the bomb- 
ing. Serious fires on the Meiping were extinguished by the 
Panay visiting party of eight men who were unable to 
return to their ship. 


"29. That after attacks on the Panay had ceased the 
Meiping and Meishia were further attacked by Japanese 
bombing planes, set on fire and destroyed. Just previous to 
this bombing Japanese Army units on shore near the wharf 
attempted to avert this bombing by waving Japanese flags. 
They were not successful and received several casualties. 
It is known that Captain Carlson of the Meian was killed 
and that Messrs. Marshall, Vines, and Pickering, and Squires 
were wounded. Casualties among the Chinese crews of these 
vessels were numerous but cannot be fully determined. 

"30. That the following members of the Panay crew 
landed on shore from the Meiping after vainly attempting 
to extinguish oil and gasoline fires on board : V. F. Puckett, 
chief machinist's mate, J. A. Granes, gunner's mate first 
class, J. A. Dirnhoffer, seaman first class, T. A. Coleman, 
chief pharmacist's mate, J. A. Bonkowski, gunner's mate 
third class, R. L. Borwing, electrician's mate third class, 
J. L. Hedge, fireman first class, and W. T. Hoyle, machin- 
ist's mate second class. These men encountered Japanese 
soldiers on shore who were not hostile on learning they were 

"31. That all of the Panay crew from the Meiping, except 
J. L. Hodge, fireman first class, remained in one group 
ashore until the following day when they were rescued by 
H. M. S. Bee. Hodge made his way to Wuhu and returned 
Shanghai via Japanese naval plane on December 14. 

"32. That in the searching for and rescuing the survivors, 
Rear Admiral Holt, Royal Navy, and the officers and men 
of H. M. S. Bee and H. M. S. Ladybird rendered most valu- 
able assistance under trying and difficult conditions, thereby 
showing a fine spirit of helpfulness and cooperation. 

"33. That Charles L. Ensminger, ship's cook first class, 
died at 1 : 30 p. m., December 13, at Hohsien, China, from 
wounds received during the bombing of the U. S. S. Panay 
and that his death occurred in line of duty. 

"34. That Edgar C. Hulsebus, coxswain, died at 6 : 30 a.m., 
December 19, at Shanghai, China, from wounds received 
during the bombing of the U. S. S. Panay and that his death 
occurred in line of duty. 


"35. That Lt. Comdr. James J. Hughes, Lt. Arthur F. 
Anders, Lt. (Jr. Gr.) John W. Geist, John H. Lang, chief 
quartermaster, Robert R. Hebard, fireman first class, Ken- 
neth J. Rice, electrician's mate third class, Carl H. ( Birk, 
electrician's mate first class, Charles S. Schroyer, seaman 
first class, Alex Kozak, machinist's mate second class, Peres 
D. Zeigler, ship's cook third class, and Newton L. Davis, 
fireman first class, were seriously injured in line of duty. 

"36. That Lt, Clark G. Grazier, Medical Corps, Ensign 
Denis H. Biwerse, Charles S. Adams, radioman second class, 
Tony Barba, ship's cook third class, John A. Bonkowski, 
gunner's mate third class, Ernest C. Branch, fireman first 
class, Raymond L. Browning, electrician's mate third class, 
Walter Cheatham, coxswain, Thomas A. Coleman, chief 
pharmacist's mate, John A. Dirnhoffer, seaman first class, 
Yuan T. Erh, mess attendant first class, Fred G. Fichten- 
mayer, carpenter's mate first class, Emery F. Fisher, chief 
watertender, Michael Gerent, machinist's mate second class, 
Cecil B. Green, seaman first class, John L. Hodge, fireman 
first class, Fon B. Hoffman, watertender second class, Karl 
H. Johnson, machinist's mate second class, Carl H. Kerske, 
coxswain, Peter H. Klumpers, chief machinist's mate, Wil- 
liam P. Lander, seaman first class, Ernest R. Mahlmann, 
chief boatswain's mate, William A. McCabe, fireman first 
class, Stanley W. McEowen, seaman first class, James H. 
Peck, quartermaster second class, Reginald Peterson, radio- 
man second class, Vernon F. Puckett, chief machinist's mate, 
King F. Sung, mess attendant first class, Harry B. Tuck, 
seaman first class, Cleo E. Waxier, boatswain's mate second 
class, John T. Weber, yeoman first class, and Far Z. Wong, 
mess attendant first class, were slightly injured in line 
of duty. 

"The Court of Inquiry was composed of: Capt. H. V. 
McKittrick, United States Navy ; Comdr. M. L. Deyo, United 
States Navy; Lt. Comdr. A. C. J. Sabalot, United States 
Navy, and Lt. C. J. Whiting, United States Navy, Judge 




Resolution relating to the Scheme of Observation of the 
Spanish Frontiers by Land and Sea,* Adopted at Lon- 
don, March 8, 1937 

The Governments represented on the International Com- 
mittee f for the application of the Agreement regarding 
Non-intervention in Spain having approved the resolution 
passed on the 16th February, 1937, by the Committee to the 
effect that the Agreement should be extended as from mid- 
night the 20th-21st February, 1937, to cover the recruit- 
ment in, the transit through, or the departure from, their re- 
spective countries of persons of non-Spanish nationality 
proposing to proceed to Spain, Spanish Possessions or the 
Spanish Zone of Morocco for the purpose of taking part in 
the present conflict ; and 

(2) Having deemed it expedient to establish a system of 
observation round the frontiers of Spain, the Spanish Pos- 
sessions and the Spanish Zone of Morocco for the purpose 
of ascertaining whether the Agreement is being observed; 

(3) His Majesty's Government in the United Kingdom 
having accepted an invitation by the Portuguese Govern- 
ment to observe the carrying out of the Agreement in Portu- 
gal, and for this purpose to appoint British observers to be 
attached to His Majesty's Embassy in Lisbon ; and 

(4) His Majesty's Government in the United Kingdom 
having informed the Committee that they are satisfied that 

* British White Paper, Spain No. 1 (1937), Cmd. 5399. 

t list of countries represented on the International Committee: 
Albania, Austria, Belgium, United Kingdom, Bulgaria, Czechoslovakia, 
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Irish 
Free State, Italy, Latvia, Lithuania, Luxemburg Netherlands, Nor- 
way, Poland, Portugal, Roumania, Sweden, Turkey, Soviet Union, 


the agreement reached between them and the Portuguese 
Government as a result of this invitation is fully adequate 
from every point of view to enable His Majesty's Govern- 
ment to discharge the responsibilities which they have agreed 
to assume, and that they will communicate to the Interna- 
tional Committee any information which may be reported 
to them by His Majesty's Ambassador at Lisbon regarding 
infringements of the Non-intervention Agreement; and 

(5) The Committee being fully confident in the discharge 
by His Majesty's Government in the United Kingdom of 
these responsibilities in regard to the Portuguese frontiers, 
in collaboration with the Portuguese Government, agrees on 
behalf of the Governments represented thereon, that the 
system of observation on the Franco-Spanish frontier, the 
frontier between Spain and Gibraltar, and the maritime 
frontiers of Spain, the Spanish Possessions, and the Spanish 
Zone in Morocco, shall be carried out in the manner indi- 
cated in the Annex attached hereto unless otherwise 
amended or determined. 


i. the organisation of the system of observation 

Establish ment of the '''International Board for Non-inter- 
vention in Spain." 

1. The system of observation will be administered on be- 
half of the participating Governments by a Board to be 
known as the "International Board for Non-intervention 
in Spain,'' and hereinafter referred to as the Board, consist- 
ing of a Chairman, to be appointed by the International 
Committee, and of five members nominated by the Repre- 
sentatives of the Governments of the United Kingdom, 
France, Germany, Italy and the U. S. S. R. 

The functions of the Board. 

2. The Board will have power to decide all questions re- 
lating to the administration of the scheme, but it will be the 
duty of the Board to submit all matters raising questions 
of principle to the International Committee for decision by 
that body on behalf of the participating Governments. 



The establishment of observation on the Spanish land 

3. In view of the fact that a special arrangement has been 
reached between the United Kingdom and Portuguese Gov- 
ernments, as referred to in paragraphs 3 and 4 of the fore- 
going Resolution, regarding the Portuguese frontiers, there 
shall be stationed on the French side of the Franco-Spanish 
frontier and on the British side of the Gibraltar-Spanish 
frontier an international staff charged with the observation 
of the enforcement of the Non-intervention Agreement. 

The regime to be established on the frontiers. 

4. For the purposes of the scheme, the Franco- Spanish 
frontier will be divided into zones, each of which will be in 
the charge of an "Administrator" who will be responsible 
for the system of observation to be established in that zone 
to the "Chief Administrator" who will be responsible for the 
whole frontier. Part of the international staff will be sta- 
tioned at railway and road crossings over the frontier, and 
part will be equipped on a mobile basis. These officials will 
work in close collaboration with the appropriate French 
authorities. As there is only one crossing from Gibraltar 
into Spain, the necessary observation will be carried out by 
one "Administrator" with a small staff of subordinate rank. 

The facilities to be accorded to, and the duties of, Adminis- 
trators under the land observation scheme. 

5. The facilities to be accorded to, and the duties of, the 
Administrators have been defined as follows: 

(1) The Chief Administrator, Administrators, and their 
subordinates shall enjoy the immunities normally accorded 
to diplomatic officers, and the Chief Administrator shall 
have the right of free communication with the Board. 
Further, the Chief Administrator and the Administrators 
and their subordinates shall be granted by the Governments 
of the countries concerned full facilities to enable them to 
exercise the rights and to discharge the duties assigned to 
them, and, in particular, those rights and duties enumerated 
in Sections (2) and (3) below. 

167533—40 11 


(2) These facilities will include — 

(a) the right of free entry at any time into railway estab- 
lishments, and similar premises; 

(b) the right, in accordance with (3) below, of making 
such inspections as they may think proper in the premises 
referred to in (a) above, for the purpose of establishing 
whether any arms or war material are being exported into 
Spain or whether foreign nationals are entering that country 
for the purpose of taking service in the present conflict, in 
contravention of the Agreement for Non-intervention; 

(c) the right (i) to call upon the responsible authorities 
for documents relating to the nature of particular consign- 
ments of goods, and (ii) to examine the passports of persons 
proceeding to Spain ; 

(d) the grant of the same priority for telephone and 
telegraph services as are accorded to diplomatic officers sta- 
tioned in, or national officials of, the country in question. 

(3) It will be the duty of the Chief Administrator in 
France and of the Administrator at Gibraltar — 

(a) when called upon by the Board, to investigate, and 
to report on, any particular case in respect of which a com- 
plaint has been submitted to the Committee by the Repre- 
sentative of a Government which is a party to the Non- 
intervention Agreement ; 

(b) whenever, as the result of investigations carried out 
by the international staff, on their own initiative, he has 
satisfied himself that a consignment of arms or war ma- 
terial (including aircraft) has been exported into Spain 
or that foreign nationals have entered Spain for the purpose 
of taking service in the present conflict, in contravention of 
the Agreement, to submit forthwith identical reports in 
regard thereto — 

(i) to the Board; 

(ii) to an official nominated for the purpose by the 
Government of the country in which he is stationed. 

(4) In addition to the rights and duties set out above, 
the Chief Administrator in France and the Administrator in 
Gibraltar will have the right at all times to communicate 
direct with the Board on any matter connected with the 
discharge of their duties. 



The general character of the scheme for sea observation. 

6. All ships having the right to fly the flags of the coun- 
tries which are parties to the Non-intervention Agreement 
(other than naval vessels) proceeding to Spain or to one of 
the Spanish Possessions, or to the Spanish Zone in Morocco, 
will — 

(a) subject to such exceptions as are set out in the follow- 
ing paragraphs in this chapter, embark at one of the ports 
specified in paragraph 12 below two or more "Observing 
Officers" appointed by the International Committee whose 
duty it will be to observe the unloading of the ship in 
Spanish ports, or 

(b) at the discretion of the Administrator or Deputy 
Administrator in charge of the Observation Port in ques- 
tion, embark one Observing Officer in the case of small ships, 
ships carrying cargo in bulk, or ships in ballast, the Gov- 
ernments concerned taking such steps as are necessary to 
require the owners and masters of ships having the right 
to fly their respective flags to comply with the provisions 
set out in the following paragraphs. 

The duties of the Chief Administrator. 

7. The general organisation of the system of observation 
described in paragraph 6 above will be entrusted to a "Chief 
Administrator." It will be the duty of the Chief Administra- 
tor to determine the allocation of the "Observing Officers" as 
between one Observation Port and another in the light of the 
day to day requirements of each port. Subject to the gen- 
eral direction of the Board, the Chief Administrator will be 
responsible for all questions relating to the discipline and 
posting of the international staff employed at the Observa- 
tion Ports. 

The duties of the Administrators and Deputy Administrators. 

8. At each of the Observation Ports enumerated in para- 
graph 12 below, an "Administrator" or "Deputy Adminis- 
trator" will, subject to the general direction of the Chief 


Administrator referred to in paragraph 7 above, be respon- 
sible for the organisation of the observation scheme in that 
port, and in particular for arranging for the embarkation 
of Observing Officers on, and their disembarkation from, 
ships having the right to fly the flags of the countries which 
are parties to the Non-intervention Agreement, proceeding 
to Spanish ports that have called at the Observation Port 
in question for the purpose of complying with the scheme 
of observation. 

9. It will be the duty of each Administrator or Deputy 
Administrator in charge of an Observation Port — 

(a) to determine in the light of actual conditions how 
many Observing Officers should be embarked in each vessel 
calling at the port for the purpose of submitting to 
observation ; 

(b) to notify to the Board the names of all vessels bound 
from his port for Spanish ports which had embarked Ob- 
serving Officers and the names of those officers, it being the 
duty of the Board to communicate this information to the 
Governments taking part in the naval observation scheme; 

(c) to submit a report to the Board, for transmission to 
the International Committee whenever one of the Observ- 
ing Officers reports to him that he has witnessed in a Span- 
ish port either the unloading of arms or war material, or 
the disembarkation of foreign nationals entering that coun- 
try, in contravention of the Non-intervention Agreement, 
for the purpose of taking service in the present conflict from 
a vessel in which he was stationed ; 

(d) to submit to the Chief Administrator, for the infor- 
mation of the Board, periodical reports in regard to all 
vessels on which Observing Officers have been embarked and 
from which no cargo or passengers have been landed in 
Spanish ports in contravention of the Non-intervention 

The duties to be imposed on the masters of ships, the facili- 
ties to be granted to, and the duties of, the Observing 

10. The duties to be imposed on the masters of ships 
having the right to fly the flags of the countries which are 
parties to the Non-intervention Agreement, and the facili- 


ties to be granted to, and the duties of, the Observing Officers 
will be as follows : 

(a) the participating Governments will instruct the mas- 
ters of all ships having the right to fly the flags of their 
respective countries, before proceeding to a Spanish port, 
to call at one of the Observation Ports specified in para- 
graph 12 below for the purpose of embarking Observing 
Officers, and, having done so, to give all necessary facilities 
to those officers to enable them to discharge the duties set 
out in (c) below, and to disembark such officers at another 
port indicated by the Administrator or Deputy Adminis- 
trator in accordance with paragraph 18 below, these facilities 
to include the right — 

(i) at any convenient time during the voyage to 
obtain all necessary information from the master as to 
the cargo carried which is consigned to Spanish ports, 
and to inspect papers relating thereto ; 

(ii) at any convenient time during the voyage to 
obtain all necessary information from the master, and, 
in his presence, or in that of an officer nominated by 
him for the purpose, to interrogate passengers, officers 
and crew, proceeding to Spanish ports and to examine 
the passports of passengers and the identity papers 
of the officers and crew; 

(iii) to be present at the unloading of any goods or 
disembarkation of any persons in a Spanish port, and 
to require the master to have opened for inspection 
any package which is being unloaded, and which the 
Observing Officer has reasonable grounds for suspect- 
ing to contain war material sent in contravention of 
the Non-Intervention Agreement, and to require the 
master to have any necessary unpacking, repacking 
and sealing-up done; 

(b) the Chief Administrator, Administrators, and Dep- 
uty Administrators and their subordinates will be granted 
by the participating Governments the immunities normally 
accorded to diplomatic and consular officers; the right of 
free communication with the Board will be granted to the 
Chief Administrator, and to Administrators and to Deputy 
Administrators, subject to any directions issued by the 
Board or (in the two last-named cases) by the Chief Ad- 


ministrator ; and the Chief Administrator, Administrators 
and Deputy Administrators and their subordinate staff will 
be granted full facilities to enable them to exercise the 
rights and to discharge the duties assigned to them, and, 
in particular, these officers will be granted the same priority 
for telephone and telegraph services as are accorded to 
diplomatic officers stationed in, or to the national officials 
of, the country in question; and the Observing Officers, 
when engaged on duty at sea, will be granted the same 
priority for telephone and telegraph services as are granted 
to the service messages of the master of the vessel on which 
they have been embarked ; 

(c) The duties of the Observing Officers, when on board 
vessels in Spanish ports, will be to take, within the limit 
of the facilities accorded to them under (a) above, all steps 
which they may consider necessary to satisfy themselves: 

(i) whether any arms or war material of the classes 
covered by the Non-intervention Agreement are being 
unloaded; and 

(ii) whether in contravention of the Non-interven- 
tion agreement, any foreign nationals intending to take 
service in the present conflict are being disembarked; 

(iii) on leaving any Spanish port that no passenger 
or member of the crew, who may have left the ship 
while in port, has failed to return in contravention of 
the Non-intervention Agreement ; 

(d) The participating Governments will issue any in- 
structions which may be necessary to require any owners and 
masters of vessels having the right to fly flags of their re- 
spective countries to take all steps in their power to prevent 
the landing in a Spanish port, in contravention of the Non- 
intervention Agreement, of any arms or war material or 
passengers which or who the Observing Officers may ascer- 
tain are being carried by the vessel in question ; 

(e) The Observing Officers, on their disembarkation, will 
immediately submit to the Administrator or Deputy Ad- 
ministrator in charge of the nearest Observation Port a re- 
port in writing, stating either that no offence against the 
Non-intervention Agreement has been committed by the 
ship in which they had been stationed, or, if such an offence 
has been committed, what is the nature of the offence ; 


(/) The participating Governments will take such legal 
or other proceedings as may be found appropriate against 
the owners or masters of vessels in cases indicated in (e) 
above, and in due course will submit a report to the Board 
regarding any penalties inflicted. 

The Observation Ports. 

11. It is an essential part of the scheme that the Obser- 
vation Ports at which the ships having the right to fly the 
flags of the countries which are parties to the Non-interven- 
tion Agreement will embark Observing Officers should be 
determined in accordance with definite rules, though, in 
particular cases, or particular classes of cases, the Admin- 
istrators in charge of any of the principal Observation Ports 
referred to in paragraph 13 below will have the right to 
make special arrangements for the embarkation of Observ- 
ing Officers at other ports to suit, as far as possible, the 
convenience of the shipping concerned from the commercial 
point of view, subject to the general provisions contained 
in paragraph 6 above. 

12. At the outset of the scheme, the obligation to be laid 
on merchant ships proceeding to Spanish ports (other than 
the Canary Islands, which are dealt with in paragraph 14 
below), will be in accordance with the following rules: 

(a) If the ship is passing in either direction through the 
Straits of Gibraltar before calling at any Spanish port she 
will call at Gibraltar, it being understood that this rule 
overrides all the following rules, which therefore only apply 
to vessels which do not come within its scope; 

(b) If the ship is passing through the English Channel 
on her way to a Spanish port from a port lying to the north 
of Dover, she will call either at Dover or at the Downs ; 

(c) If the ship (not being a ship covered by (b) above) 
proceeds to a Spanish port from a Channel port south of 
Dover, she will call at Cherbourg, unless the ship is pro- 
ceeding from a port between Cherbourg and Brest, in which 
case she will be dealt with under (d) below; 

(d) If the ship is proceeding from the Irish Free State 
or from Northern Ireland or from the Irish and Bristol 
Channels, or from a port between Cherbourg and Brest, she 
will call at Brest; 


(e) If the ship (not being a ship covered by (b) above) 
proceeds to a Spanish port from a French Atlantic or Bis- 
cayan port south of Brest, she will call at Le Verdon ; 

(/) If the ship is approaching westward through the 
Mediterranean or from a port in the Mediterranean, East 
of Longitude 12° East, she shall call at Palermo, unless for 
commercial reasons, she is in any case proceeding to Mar- 
seilles, in which case it shall be permitted to embark Ob- 
serving Officers at that port; 

(g) If the ship (not being a ship covered by (/) above) 
proceeds to a Spanish port from a North African port west 
of Longitude 12° East, she will call at Or an ; 

(h) If the ship (not being a ship covered by (/) above) 
proceeds to a Spanish port from a port on the French or 
Italian Coast between Marseilles and Longitude 12° East, 
or from Corsica or Sardinia, she will call at Marseilles ; 

(i) If the ship (not being a ship covered by (/) above) 
proceeds to a Spanish port from a French Mediterranean 
port west of Marseilles, she will call at Cette ; 

(k) If the ship is approaching from the west of Longi- 
tude 15° West, or is approaching in the Atlantic from the 
southward of Latitude 28° N., she will call at one of the 
following ports, viz., Madeira, or Gibraltar, or Lisbon; 

(Z) If the ship is coming from a port on the Atlantic 
seaboard of Morocco, she will call at Gibraltar, or, in the 
case of ships proceeding to Spanish ports north of Portugal, 
at Lisbon ; 

(m) If the ship is coming from a Portuguese port, she 
will call at Lisbon. 

Definition of principal Observation Ports. 

13. The Observation Ports which are to be regarded as 
principal Observation Ports at the outset of the scheme are 
the following: 

The Downs (or Dover) . 








Special provisions in relation to the Canary Islands. 

14. The Committee accepts the principle that observation 
shall be applied with equal efficiency to all parts of Spanish 
territory. The method of applying observation in the case 
of the Canary Islands presents special difficulty, but a sys- 
tem of observation will be determined by the International 
Committee not later than the 31st March, 1937, and will be 
brought into operation at the earliest possible date there- 

The provision of accommodation at sea for Observing 

15. The owners of vessels having the right to fly the flags 
of the countries which are parties to the Non-Intervention 
Agreement, proceeding to Spanish ports, will be under an 
obligation to provide accommodation for the Observing Of- 
ficers equivalent to that normally provided in corresponding 
vessels belonging to the same nation, for officers such as 
mates or, in a passenger ship (i. e., a ship having accom- 
modation for more than twelve passengers), for first-class 
passengers. In cases where there is no accommodation 
classed as first class, the accommodation to be provided will 
be of the highest class in the ship. 

16. Shipowners will be placed under an obligation to pro- 
vide messing similar to that provided for the masters of 
the ships concerned or for first-class passengers, for which 
payment will be made from the International Fund referred 
to in paragraph 52 below at a standard rate or rates to be 
approved by the International Committee on the recommen- 
dation of the Board. 

17. The Observing Officers will be carried on the same 
conditions with regard to liability for life and property as 
are passengers on the vessel in question. 

The disembarkation of Observing Officers. 

18. Subject to the approval of the Chief Administrator 
referred to in paragraph 7 above, the Administrator or 
Deputy Administrator in charge of each Observation Port 
will have the right to require the master of a ship which 
has embarked Observing Officers to disembark them at any 
port which would not entail an unreasonable deviation after 


the vessel has finally quitted Spanish waters. To this end 
the master of such a ship will be put under an obligation to 
disembark the Observing Officers (at the discretion of the 
Administrator or Deputy Administrator at the port of em- 
barkation) either at the Observation Port nearest to the 
route that the master intends to follow after leaving Spanish 
waters, or at any other port which does not entail more than 
50 sea miles' additional steaming. 

Special arrangements for regular trades. 

19. Shipowners engaged in regular trade with Spanish 
ports will be permitted, should they so desire, to arrange 
with the Board for Observing Officers to be stationed con- 
tinuously on board their vessels, the additional expenditure 
involved being defrayed by the shipowner concerned. It 
will be the duty of the Board to arrange for such Observing 
Officers to be changed at reasonably frequent intervals. 

No liability in respect of delay or diversion of ships, 

20. No payment will be made from the International 
Fund referred to in paragraph 52 below to shipowners in 
respect of delay or diversion occasioned by the necessity to 
embark or disembark Observing Officers, provided either— 

(a) that the Administrator or Deputy Administrator in 
charge of the Observation Port concerned embarks the Ob- 
serving Officer or Officers at the earliest possible moment, 
and, in any case, not later than four hours after the master 
or agent of the ship shall have reported its arrival to the 
Administrator or Deputy Administrator in charge of the 
port; or 

(b) that the provisions in (a) above will not apply in 
those cases where the special arrangements indicated in 
paragraph 11 above have been brought into operation ; or 

(c) that, if the Administrator or Deputy Administrator 
is unable to comply with (a) above, he will hand to the 
master of the ship a document certifying that he called at 
the port in order to comply with the scheme and that no 
Observing Officers were available to be embarked in his 
ship, the Administrator or Deputy Administrator in all 
such cases reporting the circumstances immediately to the 


Exemption of ships from dues in certain cases. 

21. The Representatives of the Governments of the coun- 
tries in which the Observation Ports are situated will con- 
sult with one another with a view to reaching agreement, 
on behalf of their respective Governments, {a) for the ex- 
emption, on a mutual basis, of ships calling at those ports 
merely for the purpose of embarking and disembarking Ob- 
serving Officers, from dues and other charges (excluding 
pilotage) normally paid by ships entering those ports, or, 
(b) if this is not possible, for the reduction of these charges 
to an equal extent in each of the countries concerned. In 
so far as such exemptions or reductions cannot be secured, 
the expenditure involved, together with expenditure in- 
curred on pilotage, except in those cases in which the ship 
would in any case for commercial reasons have called at 
the port in question, will be defrayed from the International 
Fund referred to in paragraph 52 below. 

22. The Administrators and Deputy Administrators in 
charge of Observation Ports will arrange, wherever possible, 
for Observing Officers to be embarked in such positions as 
will not necessitate the ships in question incurring either 
pilotage or dues. 


The general character of the scheme for naval observation. 

23. In order to ensure that the procedure, prescribed in 
paragraph 6 above and subsequent paragraphs, in regard to 
the scheme for sea observation is duly observed, a system of 
naval observation will be established around the Spanish 

The Powers by which naval observation will be exercised. 

24. The duty of naval observation will be undertaken by 
the Governments of the United Kingdom, France, Germany 
and Italy. 

The establishment of Observation Zones. 

25. For the purpose of naval observation the Spanish 
coasts will be divided into zones, and the responsibility for 
observation within each zone will rest exclusively upon the 
Naval Power exercising observation in that zone. 


The delimitation of the Observation Zones. 

26. At the outset of the scheme, for the purposes indicated 
in paragraph 25 above, the Spanish coasts will be divided 
into the following zones: 

A. On the north coast of Spain from the French 

frontier to Cape Busto. 

B. On the north-west coast of Spain from Cape Busto 

to the Portuguese frontier. 

C. On the south coast of Spain from the Portuguese 

frontier to Cape De Gata. 

D. On the south-east coast of Spain from Cape De Gata 

to Cape Oropesa. 

E. On the east coast of Spain from Cape Oropesa to 

the French frontier. 

F. The Spanish-Moroccan coast. 

G. The Islands of Iviza and Majorca. 
H. The Island of Minorca. 1 

27. The duties of naval observation within each zone will 
only be exercised within a distance of ten sea miles from 
any point on the Spanish coast. 

The allocation of the Observation Zones among the naval 
Powers concerned. 

28. At the outset of the scheme responsibility for the ob- 
servation zones will be allocated as follows: 

A. United Kingdom. 

B. France. 

C. United Kingdom. 

D. Germany. 

E. Italy. 

F. France. 

G. France 
H. Italy. 

The establishment of a special regime in the territorial 
waters of the countries adjacent to Spain. 

29. In order to avoid the risk of ships escaping observa- 
tion by entering Spanish territorial waters direct from the 

1 The question of the establishment of naval observation around the 
Canary Islands will be dealt with in accordance with the principles 
set out in paragraph 14 above. 


territorial waters of one of the adjacent countries, the Gov- 
ernments of the adjacent countries will themselves exercise 
observation over ships passing through these waters. The 
Governments of the adjacent countries will in due course 
notify to the International Committee the steps which they 
have severally taken to give effect to this arrangement, and 
will communicate to the Committee particulars regarding 
any infringements of the Non-intervention Agreement 
which may be detected in this manner. 

Duties of the Powers undertaking naval observation. 

30. Each of the Governments exercising naval observation 
will — 

(a) report immediately to the; International Committee 
the arrival in any Spanish port in one of the zones for which 
it is responsible of any ship the name of which has not been 
notified as having submitted to observation, and will notify 
to the International Committee the name of any ship which 
refuses to submit to observation, when the need for such 
observation has been pointed out to it in the manner pre- 
scribed in paragraph 38 below; 

(b) submit periodical reports to the International Com- 
mittee, giving full particulars regarding the arrival of all 
ships entering Spanish ports within the zones for which it 
is responsible. 

The method of observation to be adopted. 

31. The actual method by which observation will be exer- 
cised in each zone will be left to the discretion of the Gov- 
ernment to whom responsibility for that zone is allotted, 
subject to the qualification that, if any Government desires 
to make special arrangements to control the movements of 
ships in a manner such as that indicated in paragraph 36 
below, it shall first obtain the consent of the International 

Distance from coast at which naval observation will be 

32. Ships having the right to fly the flags of the countries 
which are parties to the Non-intervention Agreement, pro- 
ceeding to Spanish ports will only be liable to the system 
of naval observation prescribed in paragraph 23 above when 


they are not more than ten sea miles from the nearest point 
on the Spanish coast. Further such ships will only be 
subject to naval observation by the naval vessels of the 
particular Power which has accepted responsibility for ob- 
servation in the zone in question. 

The use of special -flags in connection with the scheme. 

33. The naval vessels, while actually engaged in the task 
of naval observation, will fly the pennant which has already 
been adopted under the terms of the North Sea Fisheries 
Convention. Ships which have the right to fly the flags of 
the countries which are parties to the Non-intervention 
Agreement will, when proceeding to Spanish ports, after 
having embarked Observing Officers at one of the Observa- 
tion Ports, or having, in lieu thereof, been granted a certifi- 
cate in the manner prescribed in paragraph 20 above, fly 
also a specially agreed pennant to indicate that they have 
complied with the procedure laid down in the paragraph 
referred to above. 

34. The mere fact that a ship having the right to fly the 
flag of any of the countries which are parties to the Non- 
intervention Agreement, when approaching a Spanish port, 
is flying the specially agreed pennant referred to in para- 
graph 33 above, will not be regarded by the vessels engaged 
in naval observation as affording evidence that the ship in 
question is in fact carrying Observing Officers, and the naval 
vessels concerned will take all necessary steps, as laid down 
in paragraph 37 below, to verify the character of the ship 
in question. 

35. Severe penalties will be imposed by the participating 
Governments on the masters of ships, having the right to 
fly their respective flags who fly on their ships the specially 
agreed pennant referred to in paragraph 33 above, if there 
are no Observing Officers on board their vessels, or unless 
they have been furnished with a certificate in accordance 
with paragraph 20 (c) above. 

The establishment of focal areas in certain cases. 

36. In order to simplify the work of naval observation, 
the Powers undertaking that observation may establish in 
the approaches to some or all of the zones focal areas through 


which all ships having the right to fly the flag of the coun- 
tries which are parties to the Non-intervention Agreement, 
proceeding to ports within those zones would be required to 
pass, but, as stated in paragraph 31 above, such focal areas 
will not be established without the prior approval of the 
International Committee. 

The duties and rights of officers commanding vessels taking 
part in the scheme. 

37. The Governments which are parties to the Non-Inter- 
vention Agreement will take such steps as are necessary to 
confer upon the officers in command of the naval vessels 
engaged in naval observation the right, within the area laid 
down in paragraph 32 above : 

(a) to verify the identity of any ship, having the right to 
fly the flag of any of the participating countries that may be 
thought to be proceeding towards any port in Spain or in 
the Spanish Dependencies; and for this purpose, when 
necessary, to order such ships to stop, to board them and to 
examine their certificates of registry and clearance docu- 
ments, and to ascertain whether there are Observing Officers 
on board; 

(b) to ascertain whether the ship has called at one of the 
Observation Ports enumerated in paragraph 12 above, and 
has taken on board Observing Officers, or has been furnished 
with a document by the Administrator or Deputy Adminis- 
trator in charge of an Observation Port, certifying that the 
vessel had called at the port in accordance with paragraph 
20 (c) above; 

(c) if and when a special plan has been submitted to, and 
approved by, the International Committee, to establish focal 
areas in the approaches to each zone, and to require all ships 
having the right to fly the flag of any of the participating 
countries to pass through the areas so established, when 
entering the zone. 

38. No right of search will be accorded to the naval vessels 
engaged in naval observation, but whenever a ship fails to 
comply with the instructions of a naval vessel engaged in 
naval observation, given in accordance with the provisions 
laid down in paragraph 37 above, or whenever the officer in 
command of a naval vessel ascertains that the master of a 


ship has not complied with the procedure laid down in para- 
graph 12 above, or has improperly flown the special pennant 
referred to in paragraph 33 above, he will draw the atten- 
tion of the master to his obligations under the Non-inter- 
vention Agreement to which the Government of his country 
is a party, and will point out that he would therefore be 
committing an offence against the laws of his own country 
unless he submits to observation before reaching a Spanish 
port. Non-compliance by a particular ship with the pro- 
cedure here laid down will be regarded as prima facie evi- 
dence that the ship has committeed a breach of the Non- 
intervention Agreement, and will entail the consequences 
indicated in paragraph 39 below. 

39. In the circumstances outlined in paragraph 38 above, 
the officer in command of the naval vessels will submit a 
report to his Government, so that that Government may 
report the matter both to the International Committee and 
to the Government of the country to which the vessel in 
question belongs, in order that legal proceedings can be 
taken in the courts of that country. Any necessary evidence 
of the officers or crew of the naval vessel or of the Adminis- 
trators and Deputy Administrators or their subordinate staff 
will, wherever possible, be taken upon commission in the 
method prescribed in the country concerned, in order to 
avoid the necessity of these witnesses having to proceed to 
the country in which the trial takes place. 

Reports to be submitted by participating Governments in 
certain cases. 

40. In the event of the master of any ship having the right 
to fly the flag of any of the countries which are parties to 
the Non-intervention Agreement, being detected by a naval 
vessel engaged in naval observation, while attempting to 
commit a breach of the Non-intervention Agreement in the 
manner indicated in paragraph 39 above, the Government 
of the country in which the ship so detected is registered will 
submit a full report to the International Committee regard- 
ing the circumstances of the case and, later, regarding the 
legal or other penalties inflicted upon the owner or master 
of the ship in question as the case may be. 



41. One of the most difficult tasks in the course of the 
preparation of the observation scheme has been to decide the 
number of international officials whom it will be necessary 
to employ to ensure the efficient operation of the scheme. 

42. In this task careful consideration has been given to 
estimates which have been prepared by Technical Advisory 
Sub-Committees composed of experts nominated by the Rep- 
resentatives of those countries which are members of the 
Chairman's Sub-Committee of the International Committee. 
These estimates have been accepted as the most reliable 
which in existing circumstances it is possible to obtain. 
Nevertheless, it is impossible at this stage to determine with 
certainty how many officials will be required for the proper 
discharge of each part of the scheme. The arrangements 
which have been agreed upon for the staffing of this organi- 
sation must thus be regarded as tentative only, and as liable 
to revision in one direction or another in the light of experi- 
ence gained in the actual operation of the scheme. 

43. It is an essential feature of the scheme that it will 
be brought into operation in a series of stages. 

44. The first stage will begin when the Chief Administra- 
tors, Administrators and Deputy Administrators and their 
personal staffs have been appointed and have taken up their 
respective posts. These officials will at once enter into the 
closest relations with the national officials of the countries in 
which they are stationed and will make all arrangements 
necessary to bring the next stage into operation. In this 
same period arrangements will be made for the recruitment 
of the subordinate officials who will be required. 

45. The second stage will begin when a sufficient number 
of subordinate officials have been recruited and despatched 
to their posts, to enable the supervision scheme to be brought 
into operation on a skeleton basis. During this stage, it is 
envisaged that the Board will exercise their discretion as 
to the interim arrangements necessary until it is possible 
to bring the full scheme into operation. 

167533—40 12 


46. The third and final stage will be reached when the full 
complement of officials for each branch of the scheme has 
been recruited and they have been despatched to their posts. 

47. It is anticipated that considerable practical experience 
regarding the number of officials required for each part of 
the scheme will have been gained during the period in which 
the scheme will have been in operation on a skeleton basis. 
It has been agreed, therefore, that at the end of the second 
stage referred to in paragraph 45 above the officers in charge 
of the main divisions of the scheme should be instructed to 
prepare for submission to the Board interim reports describ- 
ing the working of the portions of the scheme for which they 
are severally responsible, and setting out their recommenda- 
tions in regard to staff requirements. 

48. If either of the Chief Administrators or the Adminis- 
trator at Gibraltar is of the opinion that, even with the full 
staff provided in the scheme now agreed upon, he would not 
have at his disposal a sufficient number of officials for the 
proper discharge of his duties, the International Committee 
will take such steps as may be found, on examination, to_ be 
necessary to ensure the efficient operation of the portion of 
the scheme in question. 

49. In the light of the foregoing considerations, it has 
been agreed to recruit the staffs shown below for each of the 
principal portions of the Scheme. 

(a) For the Franco-Spanish frontier. 

130 Observing Officers and Assistant Observing 

(b) For the Gibraltar-Spanish frontier. 

5 Observing Officers and Assistant Observing 

(o) For the sea observation scheme. 

550 Observing Officers and Assistant Observing 


50. The figures given above are in each case exclusive of 
the Chief Administrators, Administrators, and Deputy Ad- 
ministrators, and their personal and administrative staffs. 



The cost of the schemes of land and sea observation. 

51. The cost of the scheme as set out in Chapters II and 
III of the present Annex is estimated at £834,000 if it were 
to continue in operation for a full period of twelve months. 1 

Establishment of an International Fund. 

52. In order to provide the funds required, it has been 
agreed to establish an International Fund to which the sev- 
eral Governments will contribute on agreed scales. 

The administration of the International Fund. 

53. The International Fund established in accordance 
with paragraph 52 above will be administered by the Board. 

The cost of the scheme of naval observation. 

54. Each of the Naval Powers participating in the scheme 
of naval observation (paragraphs 23 to 40 above) will de- 
fray the cost of observation which it has itself agreed to 

1 His Majesty's Government in the United Kingdom have made 
themselves directly responsible for the payment of 80 per cent, of 
the cost of the special arrangements in Portugal, the remaining 20 
per cent, being paid by the Portuguese Government themselves. This 
liability is estimated at £64,000, and a corresponding adjustment of 
the percentages will be made to ensure a fair distribution of financial 
liabilities. This adjustment will not entail any changes in the sums 
paid to the International Fund by the respective Governments, except 
in the case of His Majesty's Government in the United Kingdom. 


Aerial. See Air. 

Air bombardment. See Bombing. 

Aircraft : Page 

attack on Chinese plane 20-24 

and blockade 13, 27-31 

and contraband 25-26, 33-35 

crew of 12 

and deviation 14, 17, 18-20 

and pacific blockade 69-72 

public and private 32 

and radio 11, 25-26, 33-35 

in Spanish Civil strife 104-105 

and unneutral service 11, 12, 13, 35-38 

and visit and search 12,15-20,31-33,39 

Air law, general 2, 38^11 

analogy to maritime law 26, 40 

and blockade 13, 37-31 

Commission of Jurists' report, 1923 11-14, 16-17 

and contraband 25-26, 33-35 

Hague conventions 9, 10 

Harvard Draft code 14-15, 25 

Havana convention, 1928 10-11,32 

and mail 31-33 

Naval War College discussions of 3 

1919 convention 10 

and pacific blockade 69-72 

penalties 26 

sanctions for 4-9 

in Spanish Civil strife 104-105 

and unneutral service 12, 13, 35-38 

utility of £-9 

and visit and search 15-20, 31-33, 39 

Air mail 31^33 

Airplanes. See Aircraft. 

Approach, right of. See Pacific blockade. 

in Spanish Observation scheme 109, 124 

Armed vessels, American ships and Spanish strife 112-113 

Attack : 

on Chinese plane 20-24 

on foreign ships in civil strife 113-121, 123-126 

what constitutes an attack 125 


174 INDEX 


Barcelona, blockade of 96,97 

bombing of 6 

Barred zone in the air 27-28,39 

Belligerency (see also Insurgency) : 

in Spanish Civil strife 91-92 

Blockade {see also Pacific blockade) : 

air 13, 27-31 

in insurgency 92-93,94,98 

in Spanish Civil strife 108-109 

Bombing : 

defended and undefended towns 9, 10 

effect upon civil population 5, 6, 7 

Hague rules on bombardment 9 

of Nanking 64-65 

in undeclared wars 63 

Briggs, H 95 

Brussels (9-Power) Conference 46-54 

Capitulations. See Extraterritoriality. 

Carthage, the 24-25 

Casablanca award 82-£3 

Chinese-Japanese conflict. See Sino-Japanese conflict. 

Chinese plane, attack upon 1 20-24 

Civil population, effect of bombing upon 5, 6, 7 

Civil strife. See Spanish Civil strife. 
Civil war. See Spanish Civil strife. 
Closure. See Blockade. 

Commission of Jurists' report, 1923 11-14, 

16-17, 25, 27, 30-31, 32, 35, 38, 70 

Continuous voyage 33-35 

Contraband 25-26, 33-35 

during insurgency 92-93 

Crete, occupation of 83 

Cvprus, occupation of 83 

Damages, responsibility for, in nonwar situations 61-63 

Declaration of London 14,25-26,35-36,124 

Defended town 9 

Destruction of merchant vessel 124 

Deviation of aircraft 14, 17, 18-20, 71 

Eagleton, Clyde 62 

Effective blockade : 

in the air 28,71 

on the surface , 96 

Extraterritoriality 77 

in occupied territory 74, 82-84 

Franco, General. See Spanish Civil strife. 

Geneva agreement in Spanish Civil strife 99-107, 122, 126 

INDEX 175 

Great Britain, policy in regard to attacks in Spanish strife — 120-121 

Hague conventions, in regard to the air 9 

Convention IV 81 

Convention IX 10 

Convention XI 31 

Harvard Draft code, in regard to the air 14^15, 25 

in regard to piracy 98-99 

Havana convention on aviation, 1928 10, 32 

on rights and duties in civil strife 94,98 

Hindmarsh, A. E 57 

Hostilities. See Laws of war, military necessity, reprisals, Sino- 
Japanese conflict. 

Instructions for U. S. Armies in the Field 81 

Insurgency : 

attacks on foreign ships during 113-121 

and blockade 94-98 

maritime rules during 92-93, 121-126 

and piracy in Spanish Civil strife 98-107 

position of third states during 93-94 

in Spanish Civil strife 91-92 

International law: 

of the air. See Air law. 

of reprisals 56-57,73 

on submarines 106-107 

of war, sanctions for 4-9 

Japanese : 

attack on Chinese plane 20-24 

conflict with China. See Sino-Japanese conflict. 

Kane, the 115-116 

Kellogg-Briand Pact 86 

Law of the air. See Air law. 
Laws of war : 

applied in nonwar situations 61-62, 63-69, 85-87 

sanctions for 4-9 

League of Nations Covenant, Art. 16 57 

London rules on submarines 106-107, 124 

"Loyalists." See Spanish Civil strife and insurgency. 

Madagascar, occupation of 83 

Mail. See Air mail. 

Military advantage 4 

Military necessity and military objective 7, 61-62, 65, 67, 79, 80 

Moore, John Bassett 29 

Morocco, occupation of 82 

Nantucket Chief, the 113-114 

Naval Commanders and local authorities 84 

176 INDEX 

Naval War College situations: Page 

1902 * 93,90 

1928 36 

1932 , 57 

1935 28 

1936 3 

Neutrality. See Quasi-neutrals. 

"New Order" in the Far East 70-77 

Nine-Power Brussels conference 46-54 

treaty 47^8 

Nonintervention (see also Spanish Civil strife) 

in Spanish Civil strife 107-110, 122, 123-126 

Nonmilitary occupation. See Pacific occupation. 

Nyon accord 99-107, 125, 126 

Observation scheme in Spanish strife 108-109, 121-122 

Occupation. See Pacific occupation. 

Oriental Navigation Co. claim 95 

Pacific blockade 58, 61, 87 

in Sino-Japanese conflict 58-60 

and aircraft 69-72 

Pacific occupation (see also Reprisals) : 

American attitude toward Japanese occupation 74-79 

Crete 83 

Cyprus , 8^ 

and extraterritoriality 74, 82-84 

Madagascar . 83 

property during 66-69 

rights of Americans during 80-81 

rules of 81-82 

Samoa 83 

Tunis 83 

Pact of Paris 86 

Padelford, N. J 105-106,119-120 

Panay, the 63 

Parent government and parent state. See Insurgency. 
Penalties : 

for breach of air blockade 28-29, 39 

for violation of air law 26 

Period of liability for unneutral service 37-38 

Perrin v. U. S 6:i 

Piracy in Spanish Civil strife 98-107 

President Hoover, the 63 

Prize court 24 

Property in zone of fighting 66-69 

Quasi-neutrals : 

during insurgency 93-94,95 

during reprisals 73, 87 

ships of 113-121 

INDEX 177 


Radio summons of aircraft 18-19 

Reasonable, meaning of 60, 72, 73 

Reprisals (see also Pacific blockade and pacific occupation). 56-57,73 

conduct of hostilities in 63-69 

and extraterritoriality 74, 82-84 

general rules in regard to 60-63, 73, 85-87 

military necessity in 61-62, 65, 67, 79 

"neutrality" in 73, 85-87 

rights of foreigners 80 

rules as to pacific occupation 81-82 

Resistance to visit and search 122-126 

Responsibility for damages in nonwar situations 61-63 

Retaliation, as a sanction 5, 8 

Revolutionists. See Insurgency. 

Robin, Raymond 82-83 

Rule of 1756 34 

Samoa, occupation of 83 

Sanctions for air laws 4-9 

Self-defense 84 

Self-help 56-57,85 

Shanghai 54 

Sino-Japanese conflict: 

American attitude toward Japanese occupation 69-74 

Brussels report on 46-54 

conduct of hostilities during 63-69 

laws of war applied to 61-62 

legal nature of 46 

pacific blockade in 58-60 

policy of United States toward 54-55 

responsibility for damages in 61-63 

treatment of foreigners in 80 

treaty rights reserved in 78-79 

Spaight, J. M., on air blockade 28 

Spain. See Spanish Civil strife. 
Spanish Civil strife: 

attacks on foreign ships during 113-121 

blockade during 95-98 

British policy on attacks 120-121 

Nonintervention 107-110 

Nyon and Geneva accords 99-107 

Observation scheme 108-109 

Observation scheme and visit and search 121-123 

piracy during 98-107 

submarine attacks during 123-126 

United States relation to 110-113 

Stowell, Ellery C 73 

Strained relations 45-46 

178 INDEX 


Submarines, London rules for 106-107 

in Spanish Civil strife 99-107,122,123-125 

Summons of aircraft for visit 18-20, 39 

Tariff autonomy 77 

Territorial waters: 

attack in British 116-117 

rights of insurgents in 92-93, 124 

Third states. See Quasi-neutrals. 

Three Friends, the 94 

Treaties : 

American, in the Far East 78-79 

effect of occupation upon 74, 82-84 

Tunis, occupation of 83 

Undeclared wars. See Reprisals. 
United States: 

attacks on American ships 113-116 

and conduct of hostilities 63-69 

and Japanese occupation 74-79 

and pacific blockade 58-60 

and Sino-Japanese conflict 54-55 

and Spanish Civil strife 97, 110-113 

United States Navy Regulations 72-73,122 

United States v. Diekelman 71 

Unneutral service, aircraft engaged in 11, 12, 13, 32, 35-38 

Use of force. See Reprisals. 

in self-defense 84 

Visit and search : 

of aircraft 12, 15-20, 39 

of air mail 31^33 

and insurgency 92-93 

in Spanish Observation scheme 108-109,121-123 

War, criteria of 45 

War zone (see also Blockade) 95,96 

Wisconsin, the 117-118